- The Department of Homeland Security’s practice of searching people’s phones and computers at border crossings without reasonable suspicion is unconstitutional, a federal judge ruled Tuesday.
- The ruling is being heralded as a victory by privacy advocates, who were concerned with DHS’s unfettered access to travellers’ sensitive personal information at border crossings.
- Immigration and Customs Enforcement and Customs and Border Patrol must now demonstrate legitimate suspicion of illegal activity before being able to search travellers’ electronic devices.
- Visit Business Insider’s homepage for more stories.
Immigration and Customs Enforcement and Customs and Border Patrol agents will no longer be able to indiscriminately search the phones and laptops of travellers crossing the US border, a federal judge ruled Tuesday.
In its ruling, the US District Court in Massachusetts ruled that it violates the Fourth Amendment for Homeland Security officials to search travellers’ electronic devices without “individualized suspicion” of contraband.
The lawsuit that led to the ruling, Alasaad v. Nielsen, was filed by the American Civil Liberties Union, the Electronic Frontier Foundation, and the ACLU of Massachusetts on behalf of 11 people whose devices were seized and searched without a warrant by border patrol agents. DHS Secretary Kirstjen Nielsen was the defendant, alongside ICE and CBP heads.
“This ruling significantly advances Fourth Amendment protections for millions of international travellers who enter the United States every year,” ACLU staff attorney Esha Bhandari said in a statement. “By putting an end to the government’s ability to conduct suspicionless fishing expeditions, the court reaffirms that the border is not a lawless place and that we don’t lose our privacy rights when we travel.”
It’s not yet clear whether DHS will appeal the ruling.
When reached for comment by Business Insider, a DHS spokesperson cited an official policy against commenting on pending legal action. The spokesperson added that CBP conducted 40,913 border searches of electronic devices last year, representing less than.01% of arriving international travellers.
The practice of searching electronic devices by ICE and CBP has been widely documented in recent years. Before Tuesday’s court ruling, there was no clear legal precedent to determine whether Fourth Amendment protections extended to people entering the US internationally – in its absence, DHS officials operated under CBP Directive No. 3340-049A, which declared that agents could search anyone’s electronic devices for any reason.
In August, a Lebanese student who was admitted to Harvard University was temporarily detained by Border Patrol agents in Boston who searched his phone and laptop. Based on what they found, the agents deemed him “inadmissable,” temporarily barring him from entering the country and starting college (after a legal battle, the student was allowed to enter the US in September).
CBP has reportedly also targeted journalists and activists crossing the border, searching their electronic devices for sensitive information. Seth Harp, a journalist with The Intercept, recounted his experience being detained by Border Patrol after returning from a trip to Mexico in June, during which agents searched his laptop and poured through sensitive information provided by his sources.
“It was the digital equivalent of tossing someone’s house: opening cabinets, pulling out drawers, and overturning furniture in hopes of finding something – anything – illegal,” Harp wrote at the time. “He also went through my personal photos, which I resented. Consider everything on your phone right now. Nothing on mine was spared.”
The new ruling effectively bars Border Patrol agents from searching any electronic devices they see fit. Read the whole ruling here.
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