Feds Can’t Dodge Lawsuit Over Tech Searches at Border

BOSTON (CN) – A federal judge in Massachusetts refused Thursday to throw out a lawsuit challenging the Department of Homeland Security’s policy of searching electronic devices at the border without a warrant.

U.S. District Judge Denise Casper denied the government’s motion to dismiss civil rights claims from a group of people who all had their electronic devices confiscated when they entered the country.

“In light of the particular concerns raised by digital devices like cell phones … and the limitless search authorizations in the [Customs and Border Protection] and [Immigration and Customs Enforcement] policies, plaintiffs have plausibly alleged that the government’s digital device search policies substantially burden travelers’ First Amendment rights,” Casper wrote in her 52-page ruling. The decision is dated May 9 but was not made available until Thursday.

A group of 11 travelers represented by the American Civil Liberties Union and Electronic Frontier Foundation sued last September to challenge Homeland Security’s policy of searching laptops and smartphones without warrants from people entering the country. ICE and CBP are both agencies within Homeland Security.

The plaintiffs include a military veteran, journalists, students, an artist, a NASA engineer and a business owner. The group is comprised of 10 U.S. citizens and one green card holder.

They each claim border officers searched their devices when they re-entered the United States from business or personal travel. None were subsequently accused of any wrongdoing.

“This is a win for constitutional rights at the border,” ACLU attorney Esha Bhandari said in a statement. “The court has rightly recognized the severity of the privacy violations that travelers face when the government conducts suspicionless border searches of electronics. We look forward to arguing this case on the merits and showing that these searches are unconstitutional.”

Judge Casper found that the plaintiffs can sue for violations of their Fourth Amendment and First Amendment rights, based in part on the widespread use of digital devices.

“Although defendants may be correct that the border is different, the Supreme Court and First Circuit have acknowledged that digital searches are different too since they ‘implicate privacy concerns far beyond those implicated’ in a typical container search,” the judge wrote.

Last year, CBP conducted more than 30,000 device searches at the border, more than triple the number just two years earlier.

In January, the agency issued a new directive on its device search policy saying officers who want to search a device by attaching separate computer equipment to it must have reasonable suspicion or a national security interest.

The policy still allows officers to manually search devices with or without suspicion.

Electronic Frontier Foundation staff attorney Sophia Cope called Thursday’s ruling a victory “for the digital rights of all international travelers.”

“In rejecting the government’s motion to dismiss the case, the court rightly concluded that the plaintiffs sufficiently alleged that the government’s device search policies unconstitutionally burden privacy and free speech rights. As we’ve long argued, the border is not a Constitution-free zone,” she said in a statement.

Spokespersons for ICE and CBP declined to comment on the ruling.

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