Warrantless Searches of Electronic Devices at U.S. Border on Rise; ACLU, EFF File Lawsuit

The American Civil Liberties Union (ACLU), ACLU of Massachusetts, and the Electronic Frontier Foundation (EFF), filed a lawsuit this Wednesday, September 13th, in an effort to halt warrantless searches of smartphones, laptops and other electronic devices at the U.S. border. Since 2009, both U.S. Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) have specific policies which allow ICE and CBP officers to search electronic devices seized at the border, without a warrant. Such warrantless searches are reportedly on the rise under the Trump administration. According to CBP data, nearly 15,000 warrantless electronic device searches were conducted by CBP officers just in the first half of 2017, which is nearly double the total number of similar searches in the entire year of 2015.

The ACLU claims this practice is unconstitutional, both as a violation of an individual’s 4th Amendment right to privacy, and a violation of an individual’s 1st Amendment right to freedom of speech. In their complaint, the ACLU and EFF claim a person’s right to free speech and association under the 1st Amendment is chilled when international travelers know their personal, confidential and anonymous data may be viewed and retained by U.S. government officials. In addition, the complaint alleges such warrantless searches amount to unreasonable searches and seizures in violation of a person’s 4th Amendment rights.

The case, Alasaad v. Duke, involves 11 travelers, 10 U.S. citizens and one lawful permanent resident, whose devices were searched without a warrant at the U.S. border. All plaintiffs were not subsequently accused of any wrongdoing. Many searched devices contained sensitive information, including a journalist’s confidential information. Officers confiscated and kept the devices of several plaintiffs for weeks or months.

Currently, in accordance with their policies, CBP and ICE officers may seize and search all electronic devices, brought by individuals entering the country, without any suspicion a person has violated any immigration, customs or criminal laws. In addition, at their own discretion, officers may download and save all data contained on a cell phone for later review, or confiscate the phone for a forensic search conducted at a separate location.

In 2014, the U.S. Supreme Court settled the issue of warrantless searches of electronic devices, in the context of cell phones, seized incident to arrest by police officers. In that case, Riley v. California (2014), the defendant had been stopped for a traffic violation, and was subsequently arrested on weapons charges. Incident to the arrest, the police officer seized the defendant’s cell phone from his pants pocket and searched through its contents. Based on images found on his cell phone, identified as gang-related, the defendant was charged with additional crimes. The Court found such a search violated the 4th Amendment, and ruled police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested. The ACLU and EFF argue there is no reason the U.S. Supreme Court’s decision, ruling warrantless cell phone searches by police violate the Constitution, should not also control U.S. Customs and Immigration officials conducting border searches.

Although the ACLU's case involves only legal residents and citizens, there is no reason to believe a court’s decision on this matter would not apply equally to non-residents or illegal non-citizens as well. The U.S. Supreme Court made clear in its 1973 decision, Almeida-Sanchez v. United States, that 4th Amendment protections apply to citizens and non-citizens alike, whether here legally or illegally. More recently, the U.S. Supreme Court ruled in Zadvydas v. Davis (2001) that “due process” of the 5th and 14th Amendments applies to all aliens in the United States whose presence may be or is unlawful, involuntary or transitory. Additionally, the U.S. Supreme Court held in Bridges v. Wixon (1945), “freedom of speech and press is accorded aliens residing in this country,” and thus the 1st Amendment prevents the government from censoring non-citizens’ speech or suppressing the practice of their religion. As such, it is the ACLU’s position that the Constitution is violated anytime border searches of international travelers’ electronic devices are conducted by U.S. government officials without a warrant, which necessarily is based on probable cause the device contains data that indicates a traveler has broken an immigration or customs law.

The law firm of Reyes & Schroeder Associates, P.C. will continue to monitor this situation, bringing you updates as they develop. We encourage our site visitors to know their rights and immediately seek the counsel of an attorney if they believe their rights have been violated by U.S. government officials. The law firm of Reyes & Schroeder Associates, P.C. stands committed to advocating for the protection of your rights and those of your family. Your rights are our business. If you are an immigrant seeking legal status, residency or citizenship in the United States, call our office today to receive your free initial consultation from one of our qualified, licensed U.S. immigration attorneys.

About the Author: Michael W. Schroeder is a licensed attorney in good standing in the State of California and a Certified Information Privacy Professional (CIPP-US), licensed by the International Association of Privacy Professionals (IAPP).

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