New Documents Reveal DHS Claiming Broad, Unconstitutional Authority to Search Travelers' Phones and Laptops

The American Civil Liberties Union, Electronic Frontier Foundation, and ACLU of Massachusetts today asked a federal court to rule without trial that the Department of Homeland Security violates the First and Fourth Amendments by searching travelers' smartphones and laptops at airports and other U.S. ports of entry without a warrant.

The request for summary judgment comes after the groups obtained documents and deposition testimony revealing that U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement authorize border officials to search travelers' phones and laptops for general law enforcement purposes, and consider requests from other government agencies when deciding whether to conduct such warrantless searches.

"This new evidence reveals that government agencies are using the pretext of the border to make an end run around the First and Fourth Amendments," said Esha Bhandari, staff attorney with the ACLU's Speech, Privacy, and Technology Project. "The border is not a lawless place, ICE and CBP are not exempt from the Constitution, and the information on our electronic devices is not devoid of Fourth Amendment protections. We're asking the court to stop these unlawful searches and require the government to get a warrant."

The previously undisclosed government information was obtained as part of a lawsuit, Alasaad v. McAleenan, the ACLU and EFF filed in September 2017 on behalf of 11 travelers -- 10 U.S. citizens and one lawful permanent resident -- whose smartphones and laptops were searched without warrants at U.S. ports of entry.

"The evidence we have presented the court shows that the scope of ICE and CBP border searches is unconstitutionally broad," said EFF Senior Staff Attorney Adam Schwartz. "ICE and CBP policies and practices allow unfettered, warrantless searches of travelers' digital devices, and empower officers to dodge the Fourth Amendment when rifling through highly personal information contained on laptops and phones."

The government documents and testimony, portions of which were publicly filed in court today, reveal CBP and ICE are asserting broad and unconstitutional authority to search and seize travelers' devices. The evidence includes ICE and CBP policies and practices that authorize border officers to conduct warrantless and suspicionless device searches for purposes beyond the enforcement of immigration and customs laws. Officials can search devices for general law enforcement purposes, such as enforcing bankruptcy, environmental, and consumer protection laws, and for intelligence gathering or to advance pre-existing investigations.

Officers also consider requests from other government agencies to search devices. In addition, the agencies assert the authority to search electronic devices when the subject of interest is someone other than the traveler -- such as when the traveler is a journalist or scholar with foreign sources who are of interest to the U.S. government, or even when the traveler is the business partner of someone under investigation. Both agencies further allow officers to retain information from travelers' electronic devices and share it with other government entities, including state, local, and foreign law enforcement agencies.

The plaintiffs are asking the court to rule that the government must have a warrant based on probable cause before conducting searches of electronic devices, which contain highly detailed personal information about people's lives. The plaintiffs, which include a limousine driver, a military veteran, journalists, students, an artist, a NASA engineer, and a business owner, are also requesting the court to hold that the government must have probable cause to confiscate a traveler's device.

The district court previously rejected the government's motion to dismiss the lawsuit.

The number of electronic device searches at the border has increased dramatically in the last few years. Last year, CBP conducted more than 33,000 border device searches, almost four times the number from just three years prior. CBP and ICE policies allow border officers to manually search anyone's smartphone with no suspicion at all, and to conduct a forensic search with reasonable suspicion of wrongdoing. CBP also allows suspicionless device searches for a "national security concern."

Below is a full list of the plaintiffs along with links to their individual stories, which are also collected here:

• Ghassan and Nadia Alasaad are a married couple who live in Massachusetts, where he is a limousine driver and she is a nursing student.
• Suhaib Allababidi, who lives in Texas, owns and operates a business that sells security technology, including to federal government clients.
• Sidd Bikkannavar is an engineer for NASA's Jet Propulsion Laboratory in California.
• Jeremy Dupin is a journalist living in Massachusetts.
• Aaron Gach is an artist living in California.
• Isma'il Kushkush is a journalist living in Virginia.
• Diane Maye is a college professor and former captain in the U. S. Air Force living in Florida.
• Zainab Merchant is a writer and a graduate student at Harvard.
• Akram Shibly is a filmmaker from New York.
• Matthew Wright is a computer programmer in Colorado.