A federal judge has ruled that it is unconstitutional for border agents to search travelers’ electronic devices without reasonable suspicion.
The decision, issued Tuesday in a case brought by the American Civil Liberties Union, ACLU of Massachusetts and the Electronic Frontier Foundation, is poised to curb the authority of federal agents to conduct searches of travelers’ smartphones and laptops as they are entering the United States.
The case involved 11 plaintiffs, and cited multiple searches that occurred at the port of entry in Highgate, Vermont. A family returning from a vacation in Canada was stopped and searched in July 2017, and a journalist was forced to give up his password and was questioned about his work the same month.
Legal experts say the ruling is important in defining the limits of border enforcement agencies’ authorities to access personal information, and will particularly affect people in a border-adjacent place like Vermont, where some people regularly cross the border.
Meanwhile, New England lawmakers in Congress this week separately questioned Customs and Border Protection’s ramp-up of immigration checkpoints on highways far from the international boundary — raising concern over a different aspect of border agents’ broad search authorities.
Reasonable suspicion to search devices
U.S. District Judge Denise Casper ruled that suspicionless searches of devices by border agents violate the Fourth Amendment. She wrote in the decision that authorities need “reasonable suspicion” that the devices contain contraband in order to carry out a search.
In a statement, the ACLU celebrated the court ruling as an end to the government’s “fishing expeditions.”
“This ruling significantly advances Fourth Amendment protections for the millions of international travelers who enter the United States every year,” Esha Bhandari, an ACLU staff attorney said in a statement.
Lia Ernst, staff attorney for ACLU-VT, said the decision distinguishes that searching individuals’ electronic devices is beyond border agents’ authority to conduct “routine” searches.
The ruling finds that searches of devices must be based on the belief that the device itself contains contraband, such as child pornography — not that there is evidence of a crime on it, she said.
While the ACLU heralds the decision as a victory, the judge did not rein in searches as much as the lawsuit had sought. Plaintiffs had hoped the court would decide that authorities must get a warrant in order to conduct searches — a stiffer standard than the “reasonable suspicion” requirement in the decision.
“This doesn’t give us the sort of protection that a warrant requirement would,” Ernst said, but she noted the legal debates around searches are likely to continue. “Courts are moving more and more into recognizing how intrusive these searches are, and erecting more and more barriers, and I suspect this is not the last word on the subject.”
The number of searches of travelers’ electronic devices at the border has sharply increased in recent years. Ernst said ACLU-VT has heard from some people wary that their devices could be searched at the border — like a lawyer who worried that if the person’s electronic devices were searched that it could be a violation of attorney-client privilege.
Last year, Customs and Border Protection searched more than 33,000 devices — four times the number of searches in 2015, according to Sen. Patrick Leahy’s office. The sharp increase has been of concern to civil liberties advocates and some lawmakers, including Leahy, who recently reintroduced legislation to require a warrant for device searches at the border.
CBP contends only a small portion of travelers are affected by the searches. In fiscal year 2019, which ended at the end of September, the agency conducted a total of 40,913 searches of electronic devices at the border, according to CBP spokesperson Michael McCarthy. That represents less than 0.01% of the more than 414 million travelers who arrived through ports of entry last year, he noted.
CBP refused to comment on the court decision, saying the agency “does not comment on matters in litigation.”
Keeping up with rights and technology
Vermont Law School professor Jared Carter said the ruling modernizes constitutional standards to the realities of present-day technologies and recognizes that a vast amount of personal information is now stored in digital devices like smartphones.
“If our constitutional rights don’t keep up with the advent of technology, then they pretty quickly can become meaningless,” Carter said.
The ruling, he said, marks an important distinction of citizens’ rights at the border to privacy regarding the information on their phones.
“From our browsing history to our contacts to our schedules, really it’s a place where our lives live,” Carter said. “And the fact that the courts are beginning to recognize that even at the border, we have privacy interests in that information, I think is critical.”
Establishing the limits on border officials’ search authority is particularly relevant in Vermont, he noted.
“Lots of Vermonters either cross the border or live within the shadow of the border,” Carter said. “As we’re seeing increased focus on border security, whether it’s the wall or technology, it’s really important that courts grapple with this.”
Plaintiffs in the lawsuit had been the subject of border searches as they entered the country through airports and on land, like the port of entry on the U.S.-Canada border in Highgate.
In July 2017, Ghassan and Nadia Alasaad were on their way back from a vacation in Canada to their home in Massachusetts after their 11-year-old daughter had become ill when CBP officers at the Highgate station flagged them for secondary inspection.
According to the ACLU, the officers first went through Ghassan Alasaad’s phone, which was unlocked.
Five hours after they had been detained, a CBP officer asked Nadia Alasaad to give her password to her phone, which was locked, the ACLU states. Nadia Alasaad, who wears a headscarf, objected; the phone contained photos of herself without her headscarf on. She eventually did give her password, but requested that a male officer not conduct the search because of the photos. When they were told that it would take several more hours for a female officer to arrive, the Alasaads decided to leave their phones.
Their phones were returned two weeks later, but photos of their daughter’s graduation had been deleted, Ghassan Alasaad told VTDigger in 2017.
Agents “not only pried into our private life, they destroyed parts of it,” he said at the time.
Also in July 2017, journalist Isma’il KushKush, another plaintiff in the case, traveled to Montreal with a group of fellow students at a Middlebury College language program. On his way back into Vermont, he was flagged for inspection at the Highgate port of entry, according to the ACLU. An officer told him to unlock his phone, which he eventually did, though he objected.
According to the ACLU, the officers took the phone out of his sight for about an hour. He later was questioned about his journalistic work.
Separately in 2017, VTDigger contributor Terry Allen was asked by a border officer to delete photographs she’d taken of the Highgate station.
Lawmakers press CBP on checkpoints
Last week, Leahy, Sen. Bernie Sanders, I-Vt., and Rep. Peter Welch, D-Vt., joined with members of New Hampshire’s congressional delegation to send a letter to CBP questioning the reasons behind the recent ramp-up of citizenship checkpoints in northern New England.
Border Patrol agents have broad authority up to 100 miles from the border — an issue separate from the electronic device searches that also raises concerns about protections from search. Leahy, Welch and others have proposed legislation to limit the Border Patrol zone.
Some 4,200 cars were stopped in the four checkpoints Border Patrol carried out in South Hero last summer, according to the letter. The searches resulted in only one arrest, for visa overstay. Checkpoints along Interstate 89 in New Hampshire clogged up traffic and irked locals.
In the letter lawmakers pressed the agency for information about why Border Patrol has increased checkpoints, after several years without any in the area, as well as for details about how frequently the agency uses “directed roving border patrols” — another form of enforcement away from the immediate border area.
The letter also raises questions about disparate standards Border Patrol agents reportedly use when asking people about their status at checkpoints; some people are free to go after giving a verbal answer, while others are asked to provide “extremely specific documentation,” the letter writes.
