New York Times: "Border Officers Nearly Double Searches of Electronic Devices, US Says"

by Joseph McKeown

Customs and Border Protection (CBP) officers at the border and airports have almost doubled their searches of electronic devices for individuals entering the US in the last six months, according to data released last week by CBP.

The data shows that CBP searched the electronic devices of 14,993 arriving international travelers since October of fiscal year 2017, with only 8,383 devices searched during the same period of the previous fiscal year. CBP notes that while the number of searches did increase, it only affects 0.008 percent of the approximately 189.6 million travelers arriving to the US. CBP process more than 1 million travelers arriving in the US every day.

In a statement releasing the data, CBP says that the search increase is driven by CBP’s “mission to protect the American people and enforce the nation’s laws in this digital age” and the agency has “adapted and adjusted its actions to align with current threat information,” though it does not specify exactly what threat information. “Electronic device searches are integral in some cases to determining an individual’s intentions upon entering the United States,” Deputy Executive Assistant Commissioner, Office of Field Operations, John Wagner says in the statement. “These searches, which affect fewer than one-hundredth of one percent of international travelers, have contributed to national security investigations, arrests for child pornography and evidence of human trafficking. CBP officers are well trained to judiciously conduct electronic device searches and to protect sensitive information that may be encountered.”

The agency further claims that no court has determined that a warrant is required for a search of electronic devices at the border, and that CBP’s use of this authority has been repeatedly upheld, citing a review by the Fourth and Ninth Circuit Courts of Appeals, which approved border searches of electronic devices.

Privacy activists and experts, however, say the searches are invasive and violate Fourth Amendment protections against unreasonable searches. While courts have held that protections against searches do not apply at the border and at airports because of the government’s “compelling interest in combating crime and terrorism,” a 2014 Supreme Court ruling did require law enforcement to have a warrant to search electronic devices when a person is being arrested. “Modern cellphones are not just another technological convenience,” Chief Justice John Roberts Jr. writes in the ruling. “With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life.’ The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.”  

Since the ruling did not involve a search at the border, officials for the Department of Homeland Security (DHS), the mother agency of the CBP, claims the ruling did not apply to border searches. Faiza Patel, co-director of the liberty and national security program at the Brennan Center for Justice at the New York University School of Law, says she expects this to change soon. “Lots of these exemptions to the Fourth Amendment were created when we weren’t seeing these kinds of searches of people’s personal devices,” she tells the New York Times. “I’m not sure that this can continue based on the way things are changing.”

While the policy of searching electronic devices at the border began in the George W. Bush administration and targeted specific individuals, searches have expanded to a broad range of people who pose no apparent threat. One such individual is Sidd Bikkannavar, a US-born citizen and employee of NASA’s Jet Propulsion Laboratory, who was returning to the US from vacation in South America when he was detained by CBP and pressured to hand over his NASA-issued phone and provide his access PIN. Although Bikkannavar’s phone was returned to him after it was searched by CBP, he doesn’t know exactly what potentially sensitive and proprietary material officials might have taken from the device.

Joseph B. Maher, the DHS acting general counsel, says such searches are the same as searching luggage. “Just as Customs is charged with inspecting luggage, vehicles and cargo containers upon arrival to the USA, there are circumstances in this digital age when we must inspect an electronic device for violations of the law,” Maher argues in a recent USA Today Op-Ed. A group of bipartisan lawmakers, however, disagree and have introduced legislation that would require CBP officers to obtain a warrant to search the contents of electronic devices for US nationals at the border. “By requiring a warrant to search Americans’ devices and prohibiting unreasonable delay, this bill makes sure that border agents are focused on criminals and terrorists instead of wasting their time thumbing through innocent Americans’ personal photos and other data,” Democratic Senator Ron Wyden says in a statement.

The CBP warrantless searches are also being challenged in court. The Knight First Amendment Institute at Columbia University filed a freedom of information lawsuit seeking to obtain from DHS their rules for “suspicionless” searches of electronic devices from both US citizens and non-citizens. In addition to seeking more data, the lawsuit wants internal DHS directives for compelling travelers to the US to hand over their devices, procedures for how CBP and ICE handle the information they obtain from these devices, especially those devices belonging to first amendment-protected professionals such as journalists, and privacy assessments DHS has done to audit its policies. “These searches are extremely intrusive and government agents shouldn’t be conducting them without cause,” Knight Center executive director Jameel Jaffer tells the Guardian.  “Putting this kind of unfettered power in the hands of border agents invites abuse and discrimination and will inevitably have a chilling effect on the freedoms of speech and association.”