Warrantless device searches at the border are rising. Privacy advocates are suing.


If you're traveling abroad this month, be careful what devices you bring across the U.S. border. 

Customs and Border Protection searches of cellphones, laptops and other electronic devices have spiked dramatically over the past two years, and they're expected to rise in the August vacation season.  

Privacy advocates worry that these searches, if conducted without a warrant or suspicion of wrongdoing, could expose people's financial information, location data and other intimate details to border agents who do not have a good reason or legal justification to see the data. And they've filed a bevy of lawsuits challenging the constitutionality of those searches.  

"All of us who have crossed border are used to the idea that you've got to hand over your bag" so agents can search for contraband, said Adam Schwartz, a senior staff attorney at the Electronic Frontier Foundation. "But it shouldn't be about going through cells or laptops that contain many gigabytes of information of the most sensitive nature."  

"We're packing more and more of our most sensitive data on to these devices," he told me. "Every year, when agents look into our devices, it's a bigger window into the soul, so to speak."  

Authorities are allowed to search devices people carry across the U.S. border in much the same way they search luggage, and they don't need a warrant to do it. Device searches at the border climbed steadily for several years but jumped by 11,000 - nearly 60 percent - in the last months of the Obama administration and in President Donald Trump's first year in office. Border agents searched 30,200 devices in the 2017 fiscal year, up from 19,051 the year before, according to the most recent CBP statistics.  

Border officials say devices are increasingly viewed as critical sources of information for national security threats, as my colleague Nick Miroff has reported. Agents search certain devices to check admissibility of some foreign visitors or screen for possible terrorist links, child pornography or other criminal activity.  

But privacy advocates say increasing searches across the board violates people's Fourth Amendment rights against unreasonable searches and seizures and are demanding that border agents get a warrant in such instances or at least show that a person is suspected of wrongdoing, for example, being on a terrorist watch list. They say innocent people have been searched illegally -- in one case, border agents demanded a NASA engineer's password and searched his phone without a warrant as he returned from a trip to Chile.  

Privacy advocates cite two types of problematic searches when the person isn't suspected of a crime. One is a manual search in which a border agent opens a phone and goes through its contents as a normal user might. The other is a forensic search, in which agents use software to review all of a phone's data - including web browsing history, emails, contact lists and even precise location data.  

"The government argues that the border is different. And the border may be different, but so are smartphones because they reveal all these important details," said Faiza Patel, director of the nonpartisan Brennan Center's Liberty and National Security Program.  

And lawsuits challenging device searches are bubbling up through the federal court system. The EFF is representing a group of 10 American citizens and one lawful permanent resident whose smartphones and other electronic devices were searched without a warrant. They notched a key victory in May when a judge rejected the government's request to throw out the case. "Electronic device searches are, categorically, more intrusive than searches of one's person or effects," U.S. District Judge Denise Casper wrote in the ruling. "The ability to review travelers' cellphones allows officers to view 'nearly every aspect of their lives - from the mundane to the intimate.' "  

Other similar cases are farther along. In the past year, three federal appeals courts have handed down diverging opinions in cases involving warrantless device searches at the border. That means the issue could be headed toward the Supreme Court in the near future.  

"When these searches were isolated and fewer people were affected, the momentum really hadn't reached a peak," Patel told me. "Now it seems there is a good body of instances where these searches are undertaken, and they seem to be suspicionless and there doesn't seem to be a reason for CBP to be conducting them. . . . It creates an atmosphere where these cases will be moving forward."  

As the number of searches has risen, so has the public outrage. "There is growing frustration by a growing number of people" who have had devices searched, Schwartz told me. "We get calls all the time from travelers who are very upset."


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