Trump administration sued over warrantless smartphone searches at U.S. borders

Elias Hubbard
September 14, 2017

That's compared to 8,503 in 2015 and 19,033 in 2016 - both annual statistics.

Perhaps the most recent example of this was the warrantless border search of a NASA employee who was threatened into unlocking his smartphone for a border agent...a phone issued by the space agency that contained highly sensitive data.

Both organizations have filed a lawsuit against the DHS on behalf of 11 people - 10 U.S. citizens and one green card holder - who were subjected to these warrantless devices search when attempting to enter the United States from overseas.

Wednesday's suit, filed against the Department of Homeland Security by the American Civil Liberties Union and the Electronic Frontier Foundation, demands stricter legal standard for device searches in border areas.

The lawsuit has 11 plaintiffs - 10 are USA citizens and the other is a permanent US resident - including a US military veteran, a NASA engineer and journalists. Several are Muslims or people of color.

Panelists at the ABA Annual Meeting in August said case law is murky on whether border officials can do more than a cursory search without probable cause, but lawyers may want to use burner phones and laptops without client data when traveling outside the country to avoid disclosure. This implies that agents can search texts but not, for example, your social media profiles (for US citizens, anyway). Officers then physically restrained him, with one choking him and another holding his legs, and took his phone from his pocket.

"I joined this lawsuit so other people don't have to have to go through what happened to me", said Shibly, who is from upstate NY. "Border agents should not be able to coerce people into providing access to their phones, physically or otherwise".

A Department of Homeland Security spokesman, David Lapan, declined to comment on the lawsuit, citing department policy against discussing pending litigation. Messages to the press offices of the other agencies weren't immediately returned.

Additional CBP officers have been trained on electronic media searches as more travelers than ever before are arriving at USA ports of entry with multiple electronics.

Such searches are increasing, the rights groups say. CBP officers conducted almost 15,000 electronic device searches in the first half of fiscal year 2017, putting CBP on track to conduct more than three times the number of searches than in fiscal year 2015 (8,503) and some 50 percent more than in fiscal year 2016 (19,033).

The suit seeks to establish a stricter standard for such searches and seizures. The EFF has supported the push for required warrants. Even so, Maher wrote, the searches affect less than one-hundredth of 1 percent of all travelers arriving in the U.S.

The complaint specifically identifies and challenges directives from the Customs Border Protection (CBP) and Immigration and Customs Enforcement (ICE) that define what border agents can do with respect to searching electronic devices and, according to the lawsuit, "permit warrantless and suspicionless searches and confiscations of mobile electronic devices" because they do not require warrants. Officers sometimes keep the items anyway after carrying out manual searches or using sophisticated forensic tools, the groups said. The plaintiffs include an artist, two journalists, a limousine driver, two students, a filmmaker, a college professor, a business owner, a computer programmer and an engineer at NASA's Jet Propulsion Laboratory in California.

The foundation and ACLU filed their suit in U.S. District Court in MA on behalf of 10 American citizens and a lawful permanent resident from seven states.

Other reports by Click Lancashire

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