Judge Urged to Block Warrantless Tech Searches at Border

BOSTON (CN) – Attorneys from the American Civil Liberties Union and Electronic Frontier Foundation asked a federal judge Thursday afternoon to ban the practice of border agents searching electronic devices without a warrant.

(AP Photo/Cedar Attanasio)

Both organizations sued the federal government in 2017 on behalf of 10 people whose laptops or smartphones were searched while attempting to re-enter the United States.

Now armed with information showing Customs and Border Protection gives its agents broad authority to make warrantless searches of devices, the groups asked U.S. District Judge Denise Casper to forego a trial and issue a summary judgment against the warrantless searches.

“The record demonstrates that this highly invasive practice is untethered from immigration and customs enforcement rationales,” EFF Senior Staff Attorney Adam Schwartz said at Thursday’s hearing in Boston federal court.

Schwartz argued that electronic devices such as smartphones tend to contain an enormous amount of private personal data, and recent court rulings have reflected that in ordering that warrants be required to access devices during a criminal investigation.

“The Fourth Amendment’s warrant requirement was enacted precisely to safeguard these kinds of privacy interests,” he said.

But Assistant U.S. Attorney Annapurna Balakrishna argued that the lawsuit is unreasonable because it broadly seeks protection for all high-volume devices, beyond just smartphones and laptops.

CBP said it searched about 30,200 electronic devices in 2018, up 60% from the previous year. According to the agency, searches can range from downloading the contents of a suspect laptop to simply glancing at the last few photos on a digital camera’s memory card.

“They make no effort to explain why any and all high-volume devices, such as a voice recorder or a video game console, are more deserving of Fourth Amendment protection than a traveler’s physical belongings, car, or home, all of which may be searched at the border without a warrant or reasonable suspicion,” Balakrishna said.

Balakrishna argued that the government a strong interest in preventing electronic contraband from entering the U.S., which includes child pornography. Requiring a warrant would also hinder border agents from preserving national security.

“Officers would be unable to search electronic devices in the vast majority of cases, because officers have limited or no information about the more than 1 million travelers who cross the border each day,” he told the judge.

The plaintiffs in the lawsuit include a military veteran, journalists, students, an artist, a NASA engineer and a business owner. All were re-entering the United States from business or personal travel when border officers searched their devices. None were subsequently accused of any wrongdoing.

Their attorneys with the EFF and ACLU want Judge Casper to find that officers cannot search electronic devices without warrants based on probable cause that the devices will contain evidence of an immigration or customs violation.

The government moved to dismiss the class action suit, arguing that people entering the United States have no First or Fourth Amendment protection against searches from border agents. Casper was not persuaded and denied the motion in May.

Meanwhile, the ACLU and EFF obtained information through discovery that CBP and U.S. Immigration and Customs Enforcement were allowing their agents to search devices with little to no justification for legitimate purposes.

“They claim authority to search travelers’ devices for general law enforcement purposes, such as looking for potential evidence of illegal activity beyond violations of immigration and customs laws,” Schwartz said Thursday.

It is unclear when Casper will rule on the summary judgment motion.

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