Searches of international travelers’ electronic devices have spiked in recent years. According to the lawsuit, border officers searched the smartphones and laptops of more than 33,000 international travelers in 2018 — an increase of almost 400% from three years earlier. Those searches, the complaint says, violate the Fourth Amendment’s protections against unreasonable search and seizure.
“Border searches of electronic devices intrude deeply on the private lives of all travelers and raise unique concerns for the journalists, lawyers, doctors, and others who carry particularly sensitive information about their news sources, clients, and patients,” the attorneys wrote. They argued that the warrantless searches “turn the border into a digital dragnet.”
A Customs and Border Protection policy implemented in 2018 permits two kinds of searches: basic and advanced. In a basic search, an officer looks through an electronic device manually. In an advanced search, the officer connects external equipment to the device in order to review and sometimes copy its contents.
CBP policy allows basic searches without any suspicion of wrongdoing; advanced searches require a “reasonable suspicion of activity in violation of the laws enforced or administered by CBP” or a “national security concern.” U.S. Immigration and Customs Enforcement has a similar policy permitting both basic and advanced searches.
In a legal filing, the agencies said their searches were “a crucial tool for detecting evidence relating to terrorism and other national security matters” and “can also reveal information about financial and commercial crimes.”
But those searches go far beyond what the Constitution allows, the ACLU lawsuit argues. “The government cannot use the border to circumvent the Constitution,” they wrote.
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