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Saturday, November 18, 2017

You Have a Right to Your Data at the Border

The likelihood of your electronics and data being searched at the border is increasing all the time for no other reason than, "Because we can."

Getting past U.S. Customs used to be an annoyance, an aggravating delay. But unless you were attempting to bring into the country something untoward (say, a delightfully stinky French cheese), you were not overly concerned about confronting a customs agent. That was before rummaging through your electronic life became a thing for agents at the border.

Nowadays, citizens and noncitizens alike have the pleasure of possibly having their personal devices searched and even retained for weeks on end by Customs and Border Patrol (CBP) or Immigration and Customs Enforcement (ICE) agents. That means your emails, texts, banking information, photos—anything and everything you access on your electronic device—is fair game for agents as you make your entry into the country.

And the chances of this happening to you are increasing at a staggering rate. As noted in a recent federal lawsuit by the Electronic Frontier Foundation (EFF) and the American Civil Liberties Union (ACLU), border searches are up more than 300% since 2015 alone. [1]

Searching Phones to Safeguard the Border?

Under the color of authority, CBP and ICE agents search and pull data from travelers’ mobile electronic devices (including online and cloud-based content) without a warrant, without probable cause, even without suspicion of a legal violation. Nor is a traveler’s consent necessary. According to the ICE directive that authorizes searches of electronic devices, “at no point during a border search of electronic devices is it necessary to ask the traveler for consent to search.”

Unless Willie Wonka’s teleporting device makes it to market, no one will be sneaking in people via their tablets or phones. The ICE and CBP directives that authorize these searches and confiscations cite a number of federal laws as the basis of their legal authority. The laws referenced do (e.g., 8 U.S. Code § 1357 and 8 U.S. Code § 1225), generally speaking, provide border agents broader powers than those afforded to other government agents (e.g., state and federal law enforcement) to conduct searches. Border agents do not need to have a warrant or probable cause to inspect a traveler’s suitcase, car, etc., as would otherwise be required under the Fourth Amendment.

But this broader search authority at the borders and ports of entry has a specific purpose: to enforce against smuggling people, smuggling goods, or otherwise trying to avoid import duties. How does searching a person’s mobile phone fit into this purpose? You cannot “virtually” smuggle in stinky cheese. And unless Willie Wonka’s teleporting device makes it to market, no one will be sneaking in people via their tablets or phones.

To get around the inconvenient disparity between the actual purpose of the laws and the desired use of the laws that CBP and ICE are using to justify their electronic device search policies, each agency directive raises the value of searching devices: to fight against national security threats, human and bulk cash smuggling, contraband, and child pornography; and to “reveal information about financial and commercial crimes, such as those relating to copyright, trademark and export control violations.” These grounds sound more like parts of investigatory work than parts of border patrol. It sounds as though CBP and ICE are using their broader search authority at the border to work on behalf of other enforcement agencies. And that sounds like it is outside of the scope of their statutory powers.

Bringing Suit

The EFF and ACLU are among the civil liberties groups that believe CBP and ICE are overstepping their powers through their electronic device searches. The groups recently filed a lawsuit in federal court on behalf of several U.S. citizens whose devices were searched and/or detained.

The crux of the lawsuit is that the CBP and ICE agents’ actions violate the First and Fourth Amendments of the Constitution. The argument regarding First Amendment violations is based upon the impact these searches could have on people’s freedom of speech and freedom of association. The argument regarding Fourth Amendment violations is based upon search and seizure without a warrant supported by probable cause of a legal violation.

The court in the EFF/ACLU lawsuit can weigh in on the debate in a constitutionally sound way. The EFF/ACLU lawsuit regularly references the disconnect between these border searches and any evidence of a violation of immigration or customs laws. It is a good reminder of the difference between actual authority and presumed authority. Border agents clearly have the authority to inspect suitcases, vessels, and other containers for violations of immigration and customs laws. But it is not at all clear that their authority extends to the data stored on or accessible through electronic devices. Current CBP and ICE practices are premised on presumed authority… because they can.

In addition to the EFF/ACLU lawsuit, initiatives to change border practices include federal legislation proposed earlier this year. The Protecting Data at the Border Act was introduced in both the House and Senate in April. If enacted (it is currently at the committee level in both houses), it would provide several important safeguards at issue in the lawsuit. Among other things, it would require border officials to obtain a judicial warrant based on probable cause before they could access the contents of an electronic device held by a citizen or legal resident; it would also require agents to otherwise obtain consent to search devices and require them to notify travelers or their right to refuse.

Much like CBP and ICE, other security services and agencies have made breathtakingly expansive (to say the least) interpretations of the laws granting them data collection and search powers (think FISA and the NSA’s backdoor search of American communications). The Protecting Data at the Border Act would be a good start to Congress reining in federal agencies and outlining clearly for those agencies actual versus presumed authority. Hopefully, the court in the EFF/ACLU lawsuit can weigh in on the debate in a constitutionally sound way too. Government agencies need to be reminded that “because we can” is an argument fundamentally incompatible with Constitutional principles.

[1] According to a CBP report cited in the complaint, CBP conducted 14,993 electronic device searches in the first half of fiscal year 2017, meaning it was on track to conduct some 30,000 searches in 2017, compared to just 8,503 searches in fiscal year 2015.

  • Nicole Kardell is an attorney with Ifrah Law, a Washington, DC-based law firm. She represents clients in government enforcement actions and other regulatory compliance matters before federal and state agencies.