Searching your cell phone without a warrant at the border

A number of court cases have sprung up in recent years challenging unconstitutional border searches. For Americans cognizant of their Fourth Amendment rights, it’s a trend worth keeping an eye on and an effort we hope succeeds.

Earlier this year, United States Customs and Border Protection reported a 60 percent increase in the number of searches of phones, computers and other electronic devices belonging to travelers in the 2017 fiscal year. In all, more than 30,000 searches were conducted. The searches, which the government claims is necessary to help combat terrorism, give government agents intrusive access to people’s personal data without even getting a warrant.

Fortunately, there is greater pushback against this. On May 9, the Virginia-based 4th U.S. Circuit Court of Appeals ruled that for forensic searches of travelers’ phones, there should be “some measure of individualized suspicion.” That’s certainly a step in the right direction. Meanwhile, on May 10, a federal judge in Boston in another case, Alasaad v. Nielsen, rejected a request from the Department of Homeland Security to dismiss a lawsuit challenging the warrantless searching of electronics at the border.

The decision by Judge Denise Casper was to allow the case filed by the American Civil Liberties Union, the Electronic Frontier Foundation and the ACLU of Massachusetts to proceed. As EFF staff attorney Sophia Cope said, “As we’ve long argued, the border is not a Constitution-free zone.” She notes the searches place unconstitutional burdens on privacy and free speech.

The case, involving 10 American citizens and one lawful permanent resident who had their electronic devices searched at the border, seeks to ensure that government agents first obtain a warrant based on probable cause before conducting searches of electronic devices.

After all, just a few years ago, the United States Supreme Court unanimously ruled in Riley v. California that warrantless searches of cell phones during arrests are unconstitutional because of how much personal information they contain.

Given that border searches don’t even entail an arrest, we think the same principle should hold for border searches.

— Los Angeles Daily News,

Digital First Media

Given that border searches don’t even entail an arrest, we think the same principle should hold for border searches.