The US Department of Homeland Security is being sued by 11 travellers who had their smartphones and laptops seized and searched at the US border.
The lawsuit brought by the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF) claims that the searches were unconstitutional.
Ten of the 11 plaintiffs are US citizens and the last is a permanent resident, so the lawsuit claims their rights should have been respected and the border officials should be required to get a warrant to search their digital devices.
The lawsuit is clearly aimed at forcing clarity on the issue of what is legal and not legal to do with modern devices at the border. The ACLU/EFF's position is that the government must have a warrant – which itself requires a justification of "probable cause" that the individual is violating border laws – before any device can be searched.
As such, the case has been careful to include not only multiple plaintiffs but also a broad range of individuals: journalists, artists, engineers, students, a business owner and a military vet. Several are Muslim; others are people of color. In short, a diverse group, and all of them were stopped while entering the United States, had their devices confiscated for weeks or months, and none have been accused of any wrongdoing.
"Today's electronic devices contain troves of data and personal information that can be used to assemble detailed, comprehensive pictures of their owners' lives," argues the lawsuit.
"Because government scrutiny of electronic devices is an unprecedented invasion of personal privacy and a threat to freedom of speech and association, searches of such devices absent a warrant supported by probable cause and without particularly describing the information to be searched are unconstitutional."
The complaint specifically identifies and challenges directives from the Customs Border Protection (CBP) and Immigration and Customs Enforcement (ICE) that define what border agents can do with respect to searching electronic devices and, according to the lawsuit, "permit warrantless and suspicionless searches and confiscations of mobile electronic devices" because they do not require warrants.
The lawsuit makes the long-held argument that modern phones and laptops are no longer like suitcases in that they contain "a diverse array of personal, expressive, and associational information, including emails, text messages, voice mails, communications and location history, contact lists, social media postings, Internet browsing history, medical records, financial records, privileged information, videos, photos, other images, calendars, and notes."
As a result, border officials can learn far more about an individual than is reasonable for assessing whether they should enter the country: everything from their health, religion, sexual orientation, personal life and so on. Plus, the lawsuit notes, business travelers will likely possess confidential information on clients.
This is also far from the first lawsuit on the issue.
A similar lawsuit is currently heading to the Fifth Circuit Appeals Court in which the EFF again claims that a warrant should have been required when border agents at the Texas-Mexico border searched the mobile phone of Maria Isabel Molina-Isidoro. In that case, what they discovered led to them prosecuting her for attempting to smuggle methamphetamine into the US.
But the EFF claims that the agents discovered the information used to prosecute her by accessing data held not on her phone but in the cloud. This is something that the acting head of the border agency, Kevin McAleenan, has specifically assured Congress does fit into border agents' jurisdiction.
It's fair to say that it may be hard to get public support behind a meth smuggler, so this new lawsuit aims to bring the issue into the mainstream. With a recent explosion in border searches of digital devices thanks to the strong line taken by the Trump Administration, people have become increasingly concerned about a new norm of having their devices taken away and searched based on the whims of border agents.
As an indicator of how far that concern has spread, when Apple announced new face-scanning technology in its new iPhone on Tuesday, the most frequent comment about it was the concern that the police could use the technology to unlock your phone and delve through your data.
US Customs and Homeland Security are also being sued by the Knight First Amendment Institute in an effort to force them to hand over the rules by which people have their electronic devices seized and searched at the border.
According to the institute, Homeland Security has started handing over some documents, but they remain heavily redacted and it is considering challenging the extent of those redactions.
Its executive director Jameel Jaffer told The Register: "These searches are extremely intrusive and government agents shouldn't be conducting them without cause. Investing border agents with this kind of authority invites abuse and discrimination and will inevitably have a chilling effect on the freedoms of speech and association. That chilling effect will be especially significant for racial and religious minorities and for journalists and lawyers whose work requires them to keep information confidential."
The issue of border searches has even bubbled up to Congress with the proposed Protecting Data at the Border Act, which would require border agents to get a warrant signed by a judge before going through digital devices and would introduce a four-hour time limit for detaining Americans at the border. That legislation currently sits in committee.
In this new lawsuit, the ACLU and EFF have provided examples of the impact the border search approach has had on law-abiding Americans.
Diane Maye is a college professor and retired air force officer who was detained for two hours at Miami International Airport when returning from a vacation in Europe. "I felt humiliated and violated. I worried that border officers would read my email messages and texts, and look at my photos," she said. "This was my life, and a border officer held it in the palm of his hand."
Another, NASA engineer Sidd Bikkannavar, was detained at Houston airport on the way home from holiday in Chile. A border agent demanded he tell him the password for his phone, took it away and handed it back 30 minutes later saying it had been searched using "algorithms."
No one knows what that actually means, however, thanks to the level of secrecy over what customs agents do with confiscated phones and laptops.
In one case, filmmaker Akram Shibly refused to hand over his phone at the Canadian border (his phone had been seized and searched just three days earlier on a different border crossing), and in response was put into a choke hold and had his phone pulled out of pocket. The phone was handed back an hour later. ®