By BARBARA BOLAND • July 8, 2019
If you’re traveling outside the United States this summer you might want to rethink taking your electronics along. Government agents have been detaining American citizens without arrest, searching, and in some cases downloading the entire contents of phones, tablets, laptops, and other devices. And this all happens without a warrant or access to an attorney.
“The border has become a rights-free zone for Americans who have to travel,” Senator Ron Wyden said in a statement to TAC. “The founders never could have imagined that the government would be able to sift through your entire digital life, from pictures to emails and even where you’ve been, just because you decide to take a vacation or travel for work.”
Border searches of electronic devices have exploded at an exponential rate in recent years: in 2018, U.S. Customs and Border Protection (CBP) searched over 33,295 smartphones, laptops, and other electronic devices; up nine percent from fiscal year 2017 and over six times the number searched in 2012. And that’s just the statistics from CBP; Immigration and Customs Enforcement (ICE) does not maintain records of the number of electronic device searches it conducts.
“The government is accessing all your private data,” Sophia Cope, senior staff attorney with the Electronic Frontier Foundation (EFF), told TAC. These “deeply intrusive” searches of electronic devices “reveal a lot about you: your emails, contacts, bank history, internet searches, medical history, social media usage, and political beliefs.”
The “border is not a Constitution-free zone,” said Cope. But right now, it’s essentially functioning as one, as laws that protect Americans privacy are being run over roughshod by agents at the border.
In a unanimous decision in 2014, the Supreme Court ruled that when a person has been arrested, law enforcement need a warrant to search their electronic devices.
But government agents at the border assert that they can search anyone’s device, at any time, for any reason, or for no reason at all. CBP has largely been operating under its own rules; they say they do not need a warrant, or even probable cause, to conduct this digital invasion because of the “border search exception” to the Fourth Amendment’s requirement for probable cause or a warrant.
A lawsuit brought by EFF and the American Civil Liberties Union (ACLU) argues that these searches are in violation of the First and Fourth Amendments of the U.S. Constitution.
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For travelers whose professions require they maintain the privacy of sensitive information, like journalists, attorneys, clergy, and doctors, the effect of these searches can be quite chilling. We have laws that preserve the privacy of patients and attorneys’ clients—even journalists are protected by shield laws in most states—but there’s no such protection when CBP seizes electronic devices.
Whether the searches are politically motivated or targeting specific groups or occupations is unclear.
“All we know from the government is that the number of device searches are going up—we’ve seen a sharp increase in the last 3 years,” ACLU attorney Esha Bhandari told TAC. “We don’t know what percentage are U.S. citizens; we don’t know the race or religion of people being searched; we don’t know the professions of people being searched.”
The ACLU and EFF have filed a lawsuit against the Department of Homeland Security, CBP, and ICE on behalf of eleven plaintiffs, including a NASA engineer, a professor, a computer programmer, a filmmaker, an artist, a limousine driver, and journalists who had been subjected to warrantless searches at the border. All are U.S. citizens or legal permanent residents.
The 11 plaintiffs to this case are “from all walks of life, all backgrounds,” said Bhandari. “They filed suit because they were so upset by the experience they had.”
One person detailed to Amnesty International how she was selected for secondary screening at the border, locked in a cramped, narrow concrete cell, and subjected to an invasive body search. Her requests for a lawyer and medical treatment were denied. The supervisor told her she would be held indefinitely.
When she told him that she is an American citizen, he replied: “The Fourth Amendment doesn’t apply here. We can hold you for as long as we want to.”
She was released after four hours.
Journalist Seth Harp wrote a similarly disturbing story about what happened when he was singled out for a “secondary screening” at the Austin Airport in Texas. CBP agents pried him for information about what he was writing, his sources, his reporting as a war correspondent, and his discussions with his editors.
“I did remember reading a report in February about CBP targeting journalists, activists, and lawyers for scrutiny at ports of entry south of California, but I had never had a problem before, not in a lifetime of crossing the Texas-Mexico border scores of times on foot, by car, by plane, in a canoe, even swimming,” writes Harp. “This was the first time CBP had ever pulled me aside…”
I was told that I was not under arrest or suspected of any crime, and my citizenship was not in doubt, but if I didn’t answer the question asked by the ‘incident officer,’ I wouldn’t be allowed into the United States—which I later learned was an empty threat, as CBP cannot exclude American citizens from entering the country….
Cooperation didn’t earn me any leniency. Next up was a thorough search of my suitcase, down to unscrewing the tops of my toiletries. That much I expected. But then a third officer, whose name was Villarreal, carefully read every page of my 2019 journal, including copious notes to self on work, relationships, friends, family, and all sorts of private reflections I had happened to write down. I told him, “Sir, I know there’s nothing I can do to stop you, but I want to tell you, as one human being to another, that you’re invading my privacy right now, and I don’t appreciate it.” Villarreal acknowledged the statement and went back to reading.
That was just the beginning. The real abuse of power was a warrantless search of my phone and laptop. This is the part that affects everyone, not just reporters and people who keep journals.
Harp told the officers he “had nothing to hide,” but that he wanted to “call an attorney for further advice.”
The agent told him he wouldn’t be allowed to do that because he “wasn’t under arrest.”
“When I actually tried to call a lawyer friend of mine in Austin, Pomeroy stopped me. They held onto my phone from then out.”