Two rights groups

Rights groups seek to curb war­rant­less prob­ing of trav­el­ers’ elec­tron­ics

The Washington Post - - FRONT PAGE - BY CRAIG TIMBERG craig.timberg@wash­ More at wash­ing­ton­ news/ the-switch

sued the govern­ment to curb bor­der agents’ abil­ity to search and seize trav­el­ers’ dig­i­tal de­vices at U.S. ports.

Two lead­ing civil rights groups sued the fed­eral govern­ment Wed­nes­day in hopes of curb­ing the wide-rang­ing abil­ity of fed­eral agents to search and seize the smart­phones and com­put­ers of trav­el­ers — in­clud­ing U.S. cit­i­zens — as they ar­rive at Amer­i­can ports of en­try but have not yet for­mally en­tered the coun­try.

The prac­tice, which re­mains rare but has grown more fre­quent in re­cent years, al­lows agents in bor­der zones such as the ar­rivals ar­eas of in­ter­na­tional air­ports to sidestep the Supreme Court’s land­mark Ri­ley de­ci­sion of 2014 re­quir­ing that law en­force­ment of­fi­cers get search war­rants be­fore ex­am­in­ing the con­tents of dig­i­tal de­vices.

That rul­ing grew from the lon­grun­ning con­tention by civil rights groups that mod­ern dig­i­tal de­vices carry such mas­sive amounts of data and such sen­si­tive records — in­clud­ing pho­to­graphs, lo­ca­tion data, emails, videos and Web­brows­ing his­to­ries — that they should be af­forded full Fourth Amend­ment pro­tec­tions against searches and seizures with­out war­rants.

Wed­nes­day’s law­suit, filed against the Depart­ment of Home­land Se­cu­rity by the Amer­i­can Civil Lib­er­ties Union and the Elec­tronic Fron­tier Foun­da­tion, de­mands stricter le­gal stan­dards for de­vice searches in bor­der ar­eas. The or­ga­ni­za­tions ar­gue that rel­a­tively lax rules es­tab­lished for search­ing lug­gage or goods bought in duty-free shops should not ap­ply to smart­phones, tablets and lap­top com­put­ers, which are rou­tinely car­ried across borders.

The suit says that the num­ber of such searches — con­ducted by Cus­toms and Bor­der Pro­tec­tion agents, some­times with the as­sis­tance of Im­mi­gra­tion and Cus­toms En­force­ment — has grown sharply in re­cent years and is on track to hit about 30,000 in the cur­rent fis­cal year. That num­ber means that only a tiny frac­tion of the sev­eral hun­dred mil­lion trav­el­ers who en­ter the na­tion ev­ery year are af­fected.

“The govern­ment can­not use the bor­der as a drag­net to search through our pri­vate data,” ACLU staff at­tor­ney Esha Bhan­dari said in a state­ment. “Our elec­tronic de­vices con­tain mas­sive amounts of in­for­ma­tion that can paint a de­tailed pic­ture of our per­sonal lives, in­clud­ing emails, texts, con­tact lists, photos, work doc­u­ments, and med­i­cal or fi­nan­cial records. The Fourth Amend­ment re­quires that the govern­ment get a war­rant be­fore it can search the con­tents of smart­phones and lap­tops at the bor­der.”

A Depart­ment of Home­land Se­cu­rity spokesman, David La­pan, de­clined to com­ment on the law­suit, cit­ing depart­ment pol­icy against dis­cussing pend­ing lit­i­ga­tion. But he said that all trav­el­ers are sub­ject to searches, in­clud­ing of their elec­tronic de­vices, as they en­ter the United States.

“Over the past few years, CBP has adapted and ad­justed our ac­tions to align with cur­rent threat in­for­ma­tion, which is based on in­tel­li­gence,” La­pan said in a state­ment to The Wash­ing­ton Post. “As the threat land­scape changes, so does CBP. Ad­di­tional CBP of­fi­cers have been trained on elec­tronic me­dia searches as more trav­el­ers than ever be­fore are ar­riv­ing at U.S. ports of en­try with mul­ti­ple elec­tron­ics. De­spite an in­crease in elec­tronic me­dia searches dur­ing the last fis­cal year, it re­mains that CBP ex­am­ines the elec­tronic de­vices of less than one-hun­dredth of one per­cent of trav­el­ers ar­riv­ing to the United States.”

The law­suit has 11 plain­tiffs — 10 U.S. cit­i­zens and a U.S. per­ma­nent res­i­dent — in­clud­ing a U.S. mil­i­tary vet­eran, a NASA en­gi­neer and jour­nal­ists. Sev­eral are mem­bers of eth­nic or re­li­gious mi­nor­ity groups.

One of them, Suhaib Al­lababidi, 40, is a nat­u­ral­ized U.S. cit­i­zen born in Kuwait who owns a se­cu­rity busi­ness in sub­ur­ban Dal­las. On Al­lababidi’s re­turn to Dal­lasFort Worth In­ter­na­tional Air­port from a busi­ness trip in Jan­uary, a bor­der con­trol kiosk printed a piece of pa­per with a black “X” across it rather than an en­try doc­u­ment when he tried to com­plete his en­try into the coun­try, he said. A CBP agent then took him to an in­ter­view room and asked to ex­am­ine the two phones Al­lababidi was car­ry­ing.

He agreed to the search of an iPhone that he mainly used for busi­ness travel to such coun­tries as Kuwait, China, South Korea and Mex­ico — he was trav­el­ing that day from Dubai — but he ob­jected to a search of his per­sonal phone, a Sam­sung An­droid de­vice. It in­cluded de­tails of his per­sonal life, in­clud­ing photos of his five chil­dren and his wife, also a Mus­lim, with­out the hi­jab head cov­er­ing she or­di­nar­ily wears when in pub­lic.

The agent, Al­lababidi said, took cus­tody of the Sam­sung phone and promised to re­turn it within 30 days. Fed­eral agen­cies have foren­sic tools for ex­am­in­ing the con­tents of many smart­phones and other de­vices, although Al­lababidi’s phone was se­cured with a nu­meric pass­code of more than 10 dig­its, prob­a­bly mak­ing it harder to break into the de­vice. Nearly eights months later, the fed­eral agents have not re­turned the smart­phone, Al­lababidi said, and he had to spend more than $1,000 to buy sec­ond­hand re­place­ment de­vices.

“I be­lieve in the Con­sti­tu­tion of the land,” Al­lababidi said. “No govern­ment should go through our pri­vate stuff un­less they have a war­rant.”

The suit seeks tougher stan­dards for such searches and seizures. The ACLU and the EFF ar­gue that an agent must make a find­ing of prob­a­ble cause be­fore seiz­ing a de­vice and get a search war­rant — which re­quires that a judge cer­tify the find­ing of prob­a­ble cause — be­fore ex­am­in­ing that de­vice. The civil lib­er­ties groups also call for a stricter timetable for re­turn­ing de­vices to their own­ers.

“Peo­ple now store their whole lives, in­clud­ing ex­tremely sen­si­tive per­sonal and busi­ness mat­ters, on their phones, tablets, and lap­tops, and it’s rea­son­able for them to carry th­ese with them when they travel. It’s high time that the courts re­quire the govern­ment to stop treat­ing the bor­der as a place where they can end-run the Con­sti­tu­tion,” EFF staff at­tor­ney Sophia Cope said in a state­ment.

The suit was filed in fed­eral court in Bos­ton.

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