ACLU, EFF ask Supreme Court to review border device search policies

AppleInsider · April 24, 2021 9:23PM

The American Civil Liberties Union and Electronic Frontier Foundation have petitioned the U.S. Supreme Court to hear its arguments to try and force a review of policies that allow the warrantless searches of iPhones and other electronic devices at the U.S. border.

The petition on Friday to the Supreme Court takes the form of a writ of certiorari, asking that it hears a challenge to policies of the Department of Homeland Security concerning device searching at airports and other border entry points in the United States. The two groups insist the searches are a violation of privacy that isn't justified under the constitution.

The request is part of a series of actions relating to a 2017 lawsuit, about warrantless phone and notebook searches by DHS agents, reports Engadget. In November 2019, a Boston federal district court ruled the policies on electronic device searches violated the Fourth Amendment and therefore required border officers to have some reasonable suspicion of wrongdoing before they can search a device.

However, a three-judge panel on the First Circuit reversed the decision in February 2021, prompting the escalation to the Supreme Court.

"This case raises pressing questions about the Forth Amendment's protections in the digital age," said ACLU Speech, Privacy, and Technology Project deputy director Esha Bhandari. Citing the possibility of border offers having access to "massive amounts of sensitive personal information," Bhandari said the ACLU and EFF "are asking the Supreme Court to ensure that we don't lose our privacy rights when we travel."

EFF senior staff attorney Sophia Cope claims "The U.S. government has granted itself unfettered authority to rummage through our digital lives just because we travel internationally. This egregious violation of privacy happens with no justification under constitutional law and no demonstrable benefit."

The petitioners of the case consist of four individuals, including a journalist, a NASA engineer, a business owner, and a military veteran, with some identified as Muslim or as people of color by the ACLU. The quartet were not accused of any wrongdoing by border officers, but their devices were still searched.

While it remains to be seen how the Supreme Court will react to the request, the petition seeks to overturn the First Circuit's decision, and to require the government to obtain a warrant based on probable cause before searching electronic devices, or at the very least to have a "reasonable suspicion that the device contains digital contraband."

Boarder searches have been an area of interest for the ACLU for a number of years, with it claiming in 2019 that Customs and Border Protection and Immigration and Customs Enforcement used search and seizures of electronic devices "for purposes far afield from the enforcement of immigration and customs laws."

In an April 2019 complaint via the ACLU, Apple employee Andreas Gal told of a run-in with CBP agents in November 2018, where agents seized devices owned by Apple and covered by a non-disclosure agreement.

A 2018 lawsuit from one woman claimed agents took her iPhone after she refused to unlock it at Newark Airport, which allegedly involved the copying of private data and photographs of the woman in "a state of undress." The suit demanded the return of data, the destruction of any retained copies of the data, and disclosures of third-parties who may have received copies of it.

viclauyyc · April 24, 2021 10:22PM

This is the reason why some tourist avoid visiting US. Sure it make sense to search some foreign visitors, but even American?

Also, any legit bad people will just bring a wiped smartphone and laptop across the border. Then restore from cloud.

wizard69 · April 25, 2021 3:40AM

Besides the invasion of privacy which is good enough reason to have this addressed by the court there is the other problem of the government doing this for reasons of intimidation. From all I can see the policies only reason for begin is to put fear into the minds of international travelers. As has been noted, even by customs, the policy doesn't effectively address any problem. So it becomes pretty obvious that it is tactic of intimidation which frankly has no reason for being in a free society.

chasm · April 25, 2021 4:49AM

I am so freakin' sick of the "security theatre" of airports (in particular). This is ridiculous and unneeded harassment of both American citizens and foreign visitors without cause or suspicion, it's just a random intimidation tactic to remind all of us that we have no rights in the face of pretend authorities.

I wish I had more faith in this stacked Supreme Court that they would see this for the extra-legal abuse of the Constitution that it is.

lolliver · April 25, 2021 5:31AM

viclauyyc said:

This is the reason why some tourist avoid visiting US.

My wife is Canadian and we live in Australia. When we go back to Canada to visit her family we try and fly via Hong Kong or Japan to avoid the US. Sometimes it costs a little more but it’s worth it to avoid dealing with the US Border.

22july2013 · April 25, 2021 10:33AM

viclauyyc said:

This is the reason why some tourist avoid visiting US. Sure it make sense to search some foreign visitors, but even American?

Are you implying that no other country searches your devices upon entering? I do not know which countries do this, but I suspect there are many. Also note that the case didn't explicitly say that any of the complainants were "American." Even the NASA employee could have been a foreigner ("Other than extremely rare exceptions, you must be a U.S. citizen in order to work for NASA as a civil service employee." - https://www.nasa.gov/careers/working-with-nasa . Military veterans certainly can be foreigners.)

viclauyyc said:
Also, any legit bad people will just bring a wiped smartphone and laptop across the border. Then restore from cloud.

You don't think customs could demand to see your cloud data? They might legally be allowed to demand it. Read the rest of my post, below.

Lolliver said:
When we go back to Canada to visit her family we try and fly via Hong Kong or Japan to avoid the US.

That's interesting because Canada also checks the contents of phones, as explained here:

https://www.cbsa-asfc.gc.ca/travel-voyage/edd-ean-eng.html

Here is what the US courts, including the Supreme Court, have stated about Fourth Amendment rights at the US Border:

Searches at the United States border, however, are an exception to the traditional Fourth Amendment requirements. The task of protecting our nation's borders is one burdened with an incalculable amount of responsibility. (United States v. Bravo, 295 F.3d 1002, 1003-4 (9th Cir. 2002)) The border search thus prospers as an exemption to the Fourth Amendment due to unique policy considerations that recognize the demanding duty of protecting the United States' borders. (Stephen Vina, VirtualStrip Searches atAirports:Are BorderSearches Seeing Through the Fourth Amendment?, 8 TEx. WESLEYAN L. REV. 417, 422 (2002). Vina, supra note 24, at 424. ) The United States Government "has exercised the right to control the movement of people and goods across our national boundaries," even at the nation's outset. (United States v. Asbury 586 F.2d 973, 975 (2d Cir. 1978) (citing United States v. Glaziou, 402 F.2d 8, 12 (2d Cir. 1968), cert. denied, 393 U.S. 1121 (1969); Landau v. United States Attorney for Southern District of New York, 82 F.2d 285, 286 (2d Cir. 1936), cert. denied, 298 U.S. 665 (1936)). ) In an unbroken chain of precedent, the Supreme Court has continuously held that routine inspections at the border in order to "effectuate this control" are not unreasonable searches in violation of the Fourth Amendment. (United States v. Asbury 586 F.2d 973, 975 (2d Cir. 1978) (citing United States v. Glaziou, 402 F.2d 8, 12 (2d Cir. 1968), cert. denied, 393 U.S. 1121 (1969); Landau v. United States Attorney for Southern District of New York, 82 F.2d 285, 286 (2d Cir. 1936), cert. denied, 298 U.S. 665 (1936)). 586 F.2d at 975. ) Thus, border searches have a "unique" position in constitutional law, (United States v. Vega-Barvo, 729 F.2d 1341, 1344 (11th Cir. 1984) (stating that border searches "have a unique status in constitutional law" as they "are not subject to the probable cause and warrant requirements of the Fourth Amendment"). ) arising from the belief that our international airports are viewed as "international gateways." (Bradley v. United States, 164 F.Supp. 2d 437, 447-48 (D.N.J. 2001) (noting that because international airports are also considered to be international gateways, Customs agents at these airports are thus subject to the requirements and standards that apply to a border search). )

Outside the border, non-citizens don't seem to have ANY rights. They don't have a right to a lawyer when confronted by the US military. They don't have fourth amendment rights. The US government can even, legally, spy on foreigners outside the US, which they can't do to US citizens either at home or abroad. A person isn't in the US until the pass through customs.

The US is extremely generous in respecting foreigners inside the US. Most countries will hunt you down and expel you. The US is one of the few countries that does not. That's one of the most respectful policies in the world towards illegal foreigners. Compare that to the UK, where they can, and do, set up random locations on the streets hunting for illegals, then capturing and expelling them if they can't prove citizenship or some visa. Just watch how it's done starting at 17:27 in the following video. This would be so illegal in the US, since the US has so much respect for illegals.

You sure have to admire the US for granting so many rights to foreigners. Maybe too many.

Kuyangkoh · April 25, 2021 1:24PM

Thousand are crossing the southern border illegally every day.....drugs no problems, thats where the Supreme Courts should concentrate. Not the legal visitors or citizens. What had happened in this Country

GeorgeBMac · April 25, 2021 1:55PM

wizard69 said:

Besides the invasion of privacy which is good enough reason to have this addressed by the court there is the other problem of the government doing this for reasons of intimidation. From all I can see the policies only reason for begin is to put fear into the minds of international travelers. As has been noted, even by customs, the policy doesn't effectively address any problem. So it becomes pretty obvious that it is tactic of intimidation which frankly has no reason for being in a free society.

Yeh, I am sure that that abuse of authority exists -- just as it does in police stopping a person guilty of "driving while black" and using "reasonable suspicion" to search their car. Or, how Canadian border guards coordinated with the U.S. FBI and abused their authority by conducting what otherwise would have been unlawful searches and interrogations of Meng had they been conducted by those who requested the search and interrogation -- the U.S. FBI.
Abuse of authority does exist and will likely always exist -- but it needs to be constantly fought against and those guilty held accountable.

But, in this case of border crossings, they already have the authority to search the vehicle and the baggage. So what is the difference between that and searching a phone?

boltsfan17 · April 26, 2021 6:13PM

wizard69 said:

Besides the invasion of privacy which is good enough reason to have this addressed by the court there is the other problem of the government doing this for reasons of intimidation. From all I can see the policies only reason for begin is to put fear into the minds of international travelers. As has been noted, even by customs, the policy doesn't effectively address any problem. So it becomes pretty obvious that it is tactic of intimidation which frankly has no reason for being in a free society.

How is this an invasion of privacy? You are subject to search in any country on earth you visit. That's a load of nonsense that these policies don't address any problem. There are so many international visitors that come here under the visa waiver program and lie claiming they are here as tourists when in fact, they are here for work. Most get caught when officials at the border look at their phone and see text messages proving they are coming to work.

ACLU, EFF ask Supreme Court to review border device search policies

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