U.S. ramps up searches of electronic devices at airports
WASHINGTON — Border officers dramatically increased their searches last year of photos, social media messages, emails and private files kept on cellphones and other electronic devices carried by international travelers, including U.S. citizens, according to statistics released Friday.
Although fewer than 1 percent of travelers have their devices screened, the increase alarmed privacy advocates who say U.S. citizens should not lose their protections against warrantless searches when crossing the border.
Cellphones, laptops, tablets and other devices carried by 30,200 travelers were searched during the 2017 fiscal year that ended last September, compared to 19,051 the year before, according to U.S. Customs and Border Protection.
The increase follows an even starker jump before that. Only 8,053 travelers had their devices searched in the 2015 fiscal year.
“In this digital age, border searches of electronic devices are essential to enforcing the law at the U.S. border and to protecting the American people,” said John Wagner, deputy executive assistance commissioner in charge of field operations.
Fewer than 20 percent of the travelers whose devices were searched are U.S. citizens, according to the agency, which did not make exact numbers available.
“The idea that they can be searched just by entering or leaving the country we are citizens of — it goes against the very thing the Fourth Amendment was designed to protect against, which is arbitrary dragnet surveillance,” said Ryan Calo, a law professor at the University of Washington in Seattle and an expert on privacy law.
Officials also detailed new guidelines for customs officers to clarify the broad authority the agency thinks it has to search and copy information on U.S. citizens’ devices.
Officers can ask for passwords, but they’re required to destroy them after the search, according to the guidelines.
While they can review files on a device, they’re not permitted to search or access information stored on a digital cloud. Although data connections must be turned off during searches, officers can open social media applications to view any messages or posts that are visible.
The American Civil Liberties Union, which has sued over what it says are unconstitutional searches of electronic devices, said the tighter guidelines are helpful but inadequate.
“The policy would still enable officers at the border to manually sift through a traveler’s photos, emails, documents and other information stored on a device without individualized suspicion of any kind,” said Neema Singh Guliani, legislative counsel at the American Civil Liberties Union.
Courts have held that Fourth Amendment protections against unreasonable searches can be balanced against the federal government’s need to protect the public against terrorism and crime.
But whether an American traveler’s electronic device can be searched at an airport or on the border has not been fully determined by the high court.
A 2014 Supreme Court ruling found law enforcement agents must have a warrant to search a phone or computer when a person is being arrested. Privacy advocates argue that a U.S. citizen crossing the border should have at least the same rights.
Searching the devices of Americans at the border is “problematic” and reflects “mission creep,” said James Norton, a senior official at the Department of Homeland Security during the George W. Bush administration.
Stewart Baker, senior policy official at the Department of Homeland Security from 2005 to 2009 and an expert on national security law, said there’s “nothing new” about searching electronic devices at the border.
“The basic principle is that however personal something is, it is subject to search at the border because it is necessary to decide whether to admit people and determine if they are carrying contraband,” he said.