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Lawsuit Challenges Border Patrol Phone Searches

October 31, 2017

Ten American citizens are suing the U.S. Department of Homeland Security, alleging federal border patrol agents violated their constitutional rights by searching their personal electronic devices without first obtaining search warrants from a judge.

Ten American citizens are suing the U.S. Department of Homeland Security, alleging federal border patrol agents violated their constitutional rights by searching their personal electronic devices without first obtaining search warrants from a judge.

Customs and Border Protection (CBP) agents allegedly detained Ghassan Al-Asaad, a Vermont limousine driver, for more than six hours in July 2017 as Al-Asaad and his family attempted to drive home after a visit to Quebec, Canada.

During the detention, CBP agents allegedly forced Al-Asaad and his family to provide them with passwords to facilitate searches of their mobile phones.

Other plaintiffs, including Embry-Riddle Aeronautical University assistant professor of homeland security Diane Maye and Colorado software programmer Matthew Wright, claim Border Patrol agents committed similar warrantless searches during their attempts to return from travel abroad.

Lawyers from the American Civil Liberty Union and Electronic Frontier Foundation representing Al-Assad, Maye, Wright, and the other plaintiffs filed the lawsuit on September 13 in the U.S. District Court for the District of Massachusetts.

Federal Judge Denise J. Casper has not yet scheduled a date to hear the lawsuit.

Constitutional Questions

Adam Schwartz, a senior staff attorney with Electronic Frontier Foundation, says the lawsuit is about requiring the federal government to abide by the Constitution.

 “We allege that border searches of phones, absent a warrant, violate the First and Fourth Amendments,” Schwartz said. “We also allege that lengthy confiscations of phones, absent probable cause, violate the Fourth Amendment. We are seeking declaratory and injunctive relief.”

Unless Congress changes the law or federal judges interpret the Fourth Amendment’s requirement for search warrants to cover electronic data, Schwartz says the government will continue to invade our personal lives.

“Absent a warrant requirement, the problem will get worse,” Schwartz said. “People are carrying more and more information in their phones. Border agents are searching more and more phones, more than tripling in frequency over the last two years. Border agents use increasingly sophisticated forensic tools to search our phones.”

Gone Fishin’ for Data

James Purtilo, an associate professor of computer science at the University of Maryland–College Park, says government agents’ digital fishing expeditions should be declared unconstitutional.

“In fact, phones and computers are among the most-sought items when police search a house or business, and to do this requires a warrant,” Purtilo said. “This creates a genuine dissonance: We enjoy Fourth Amendment protection for documents inside a structure we call ‘home,’ yet the exact documents in a digital home on our person seem to be fair game for officials on fishing expeditions.”

‘Federal Overreach’

Federal agents’ warrantless searches of citizens’ data are a government power grab, Purtilo says.

“Unless police have articulable reasons to treat it otherwise, digital property should be given no more scrutiny than any other property, for purposes of ensuring basic physical safety at a point of entry,” Purtilo said. “Going beyond that is federal overreach.”

Author
Michael McGrady writes from Colorado Springs, Colorado.
mmcgrady@uccs.edu

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