The New York Times: “Forced Searches of Phones and Laptops at U.S. Border are Illegal, Lawsuit Claims”

by Joseph McKeown

Two civil rights groups filed a lawsuit last week against the Department of Homeland Security (DHS) on behalf of eleven people whose cellphones and laptops were confiscated or searched at the nation’s border. The lawsuit alleges that their First and Fourth Amendment rights were violated when their devices were seized and searched without a warrant. The American Civil Liberties Union (ACLU) and Electronic Frontier Foundation (EFF) filed the lawsuit for these eleven individuals, which includes ten American citizens and one permanent resident. These individuals, a journalist, student, US military veteran, artist, and NASA engineer, among others, hope that the lawsuit will force courts to place limits on the agency’s broad authority to search all travelers entering the country, including US citizens. The lawsuit argues that the current laws in place that established rules for searching luggage for all individuals (unless exempt by diplomatic status) regardless of nationality should not apply to electronic devices such as smartphones, tablets, and laptops because these types of devices contain immense amounts of personal data and information.

The current policies in place allow Customs and Border Protection (CBP) agents to search and confiscate digital devices as easily as they would luggage without any probable cause. Courts have acknowledged that officials need to enforce immigration laws and keep contraband out. A 2014 Supreme Court decision, however, made it more difficult for police to search cellphones without a warrant because the court found that such devices contain “the privacies of life.” Still, there is no current case law that prohibits border agents from searching and seizing these devices at the border without a warrant. The policies in place allow border agents to perform digital searches “with or without individualized suspicion,” but it is not clear what the agents are actually searching for when they seize these devices.

Kevin McAleenan, acting commissioner for CBP, stated in a letter written to lawmakers this past June that agents are not allowed to search through data that is stored on the “cloud.” According to McAleenan, agents are limited to data stored directly on the personal device such as photographs, call histories, text messages, and contacts. It remains unclear whether agents are permitted to search through cloud-based apps, which would include social media accounts and emails. “We don’t think it changes anything with respect to the constitutional claims at issue here, which is that the government needs to get a warrant before it searches devices,” ACLU staff attorney Esha Bhandari tells the New York Times.

In March, the Knight First Amendment Institute at Columbia University filed Freedom of Information Act requests in hopes of learning how the government was actually using this broad authority, but have only received heavily redacted reports in response. The institute’s executive director, Jameel Jaffer, tells the New York Times that these searches could have a dire effect on lawyers, doctors, and journalists who all have a professional obligation to keep their sources, clients, patients, and the information they provide confidential. “It’s hard to see how the kind of unfettered authority that border agents have been invested with can be reconciled with the limits the constitution places on government power,” Jaffer says. Although the government officials cannot technically compel travelers to unlock their devices, many, including the plaintiffs being represented in this current lawsuit, have said that they feel as though they were intimidated into doing so.

Suhaib Allababidi, one of the plaintiffs in the lawsuit and a naturalized US citizen born in Kuwait, was brought into an interview room and asked if agents could examine the two cell phones he was carrying when he arrived back at Dallas/Fort Worth International Airport from Dubai for a business trip in January. Allababidi, who owns a security business in Dallas, agreed to let agents search the phone that he mainly used for business trips to Kuwait, China, South Korea, and Mexico, but did not agree to agents searching his personal cell phone. The cell phone contained personal details about his life, photographs of his five children, and photographs of his wife, who is Muslim, without the hijab head covering she wears in public. The agents took custody of his personal cell phone anyway, promising to return it in thirty days. To date, the agents have not returned his personal cell phone to him, forcing Allababidi to spend more than $1,000 on replacement devices. “I believe in the constitution of the land. No government should go through our private stuff unless they have a warrant,” Allababidi says.

Diane Maye, an assistant professor of homeland security at Embry-Riddle Aeronautical University and former US Air Force captain, was detained at Miami International Airport upon her return from a vacation to Norway. Maye was brought into a small room by agents who then proceeded to search her laptop and cell phone for approximately two hours. She was also interrogated about her career, travel history, and contacts in the Middle East. Maye wrote a dissertation on Iraqi politics after Saddam Hussein fell from power. She also worked in Iraq for over a year while under contract with the US government, according to the New York Times. She currently participates on a panel of academics that advises US Central Command. Although she complied, Maye states that she still does not understand why she was stopped and feels humiliated and violated. Maye also says that she unlocked her cell phone because she felt as though she had no other choice.  “As someone who typically obeys people in authority, I did as I was told under the idea that they had Americans’ best interest in mind,” Maye says.

Another plaintiff, Akram Shibly, is an award-winning filmmaker and US citizen. Shibly was detained on two occasions on the US/Canada border, during which agents asked him to surrender his cell phone and provide his passcode. During his second detention, Shibly refused to surrender his cell phone to border agents who then allegedly assaulted him and took his cell phone by force. “One agent grabbed me by the throat and began to choke me,” Shibly says. He also says that two other agents then held his legs while a third agent took the cell phone from his pocket. 

Searches of electronic devices at the border became more common during the Obama administration, but they have significantly increased in recent months. According to studies, there were approximately 15,000 searches from October 2016 to March 2017. During the same time period a year before, there were only 8,383 searches. Although David Lapan, a spokesman for DHS, refused to comment on this pending lawsuit, he did state that he believes the searches are absolutely lawful. In a statement to the Washington Post, Lapan explained that CBP only examines the electronic devices of less than one-hundredth of one percent of travelers arriving in the US and only does so in response to current threat information. This past March, acting general counsel for DHS, Joseph B. Maher, defended the agency’s actions in a USA Today opinion piece. “These electronic media searches have produced information used to combat terrorism, violations of export controls, and convictions for childhood pornography, intellectual property rights violations and visa fraud. This authority is critical to our mission, and Customs exercises it judicially,” Maher writes. 

Although DHS and CBP claim that this right to search electronic devices is designed to protect our country from increasing threats to our security, privacy activists still refuse to accept that the laws designed for searching luggage should apply to personal devices as well. Privacy advocates such as Bhandari continue to believe that the government is using the border as a way to search through our private data and information, infringing upon the right to privacy. In a recent statement, EFF staff attorney Sophia Cope explains: “People now store their whole lives, including extremely sensitive personal and business matters, on their phones, tablets, and laptops, and it’s reasonable for them to carry these with them when they travel. It’s high time that the courts require the government to stop treating the border as a place where they can end-run the Constitution.”