US Court Rules Suspicionless Phone and Laptop Searches Unconstitutional

A US federal court has ruled on the hugely controversial practice of border security searching people’s laptops and cell phones. It calls the practice unconstitutional.

It’s a digital rights battle that has been going on for years in the US. Digital rights advocates call it digital frisking. That is a practice where border security search people’s cell phones and laptops without suspicion. Often, a copy of all the files are taken before the device is returned to the owner. A question many have is whether or not such a practice is even constitutional.

The question of whether or not the practice is constitutional is one that is being asked in the Alasaad v. McAleenan case. That lawsuit was filed by the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF). The Boston court ruled that such searches are unconstitutional. Civil and digital rights advocates are hailing this as a major digital rights victory. From the EFF:

“This ruling significantly advances Fourth Amendment protections for millions of international travelers who enter the United States every year,” said Esha Bhandari, staff attorney with the ACLU’s Speech, Privacy, and Technology Project. “By putting an end to the government’s ability to conduct suspicionless fishing expeditions, the court reaffirms that the border is not a lawless place and that we don’t lose our privacy rights when we travel.”

“This is a great day for travelers who now can cross the international border without fear that the government will, in the absence of any suspicion, ransack the extraordinarily sensitive information we all carry in our electronic devices,” said Sophia Cope, EFF Senior Staff Attorney.

The district court order puts an end to Customs and Border Control (CBP) and Immigration and Customs Enforcement (ICE) asserted authority to search and seize travelers’ devices for purposes far afield from the enforcement of immigration and customs laws. Border officers must now demonstrate individualized suspicion of illegal contraband before they can search a traveler’s device.

The comments continue to say that border security has conducted 33,000 searches in the last year. They say that this is up sharply by nearly 4 times in the last three years.

The post also mentions what one of the plaintiffs went through that helped spark the lawsuit. Returning US resident, Zainab Merchant, had his cell phone searched. Border security knowingly accessed material that was under attorney client privilege.

Additionally, the post links to a report of another case where a Harvard Freshman from Lebanon was subject to a search and deported because of social media posts made by his friends. From The Crimson:

Ajjawi wrote that he spent eight hours in Boston before he was required to leave. Upon arrival, Ajjawi faced questioning from immigration officials along with several other international students. While the other students were allowed to leave, Ajjawi alleges an immigration officer continued to question him about his religion and religious practices in Lebanon.

The same officer then asked him to unlock his phone and laptop, and left to search them for roughly five hours, Ajjawi alleges. After the search, the officer questioned him about his friends’ social media activity.

“When I asked every time to have my phone back so I could tell them about the situation, the officer refused and told me to sit back in [my] position and not move at all,” he wrote. “After the 5 hours ended, she called me into a room , and she started screaming at me. She said that she found people posting political points of view that oppose the US on my friend[s] list.”

Ajjawi wrote that he told the officer he had not made any political posts and that he should not be held responsible for others’ posts.

“I responded that I have no business with such posts and that I didn’t like, [s]hare or comment on them and told her that I shouldn’t be held responsible for what others post,” he wrote. “I have no single post on my timeline discussing politics.”

The officer then canceled Ajjawi’s visa, informed him he would be deported, and allowed him a phone call to his parents.

So, it’s easy to see why the digital frisking practice is controversial in the first place. It’s unclear at this stage whether there will be an appeal in this case. An appeal might throw things into question. Still, though, for digital rights, this is a major digital rights victory.

Drew Wilson on Twitter: @icecube85 and Facebook.



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