A federal court in Boston has ruled that US government agents cannot search travelers’ electronic devices at the border without reasonable suspicion, marking a significant win for privacy rights.
The US District Court of Massachusetts issued an order on Tuesday, ruling that agents need specific and individual suspicion of illegal contraband to search a traveler’s phone, laptop, or other digital device. US Customs and Border Patrol (CBP), as well as Immigration and Customs Enforcement (ICE), have long argued that there are no Fourth Amendment protections for travelers at the border, meaning agents can search the contents of laptops or phones without having to get a warrant, or even justify it with specific suspicions of wrongdoing.
Several travelers have complained about border agents’ invasive searches in recent years. In 2017, a US citizen was detained for hours at Los Angeles International Airport after passing through a TSA checkpoint on his way out of the country. The man filed a lawsuit against the US government last year, claiming border agents pressured him to unlock his phone before boarding his flight. In 2016, a Wall Street Journal correspondent returning from Beirut, Lebanon was detained at the airport, questioned by CBP agents, and told to hand over her devices.
The judge’s ruling is the result of a lawsuit launched by the Electronic Frontier Foundation and the American Civil Liberties Union on behalf of 11 travelers who had their laptops and phones searched at the border.
“These searches provided access to the photographs, contacts and data of both a personally and professionally sensitive nature,” District Court Judge Denise J. Casper wrote in the ruling. “Agents and officials must have reasonable suspicion to conduct any search of entrants’ electronic devices under the ‘basic’ searches and ‘advanced’ searches as now defined by the CBP and ICE policies. This requirement reflects both the important privacy interests involved in searching electronic devices and the Defendant’s governmental interests at the border.”
The EFF celebrated the ruling.
“This ruling significantly advances Fourth Amendment protections for millions of international travelers who enter the United States every year,” Esha Bhandari, staff attorney with the ACLU’s Speech, Privacy, and Technology Project, said in a press release. “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 ruling does not create a binding precedent for future cases, according to Brian Owsley, a law professor at the University of North Texas in Dallas, but it will force the government to change its practices.
“The status quo has been that DHS and ICE basically searched devices of people when they entered the United States even if people objected,” Owsley told Motherboard in an email. “After this decision, I think it is more difficult for the government to do that.”
In other words, travelers who get stopped in the future without a reasonable suspicion that they’re doing anything wrong will be able to point to this ruling.
“I think that going forward, the government would be wise to ensure that it had reasonable suspicion for any cell phones it searched at border entries whether in Boston or the Rio Grande Valley,” Owsley explained in an email. “If it does not have reasonable suspicion, the government risks having a similar decision as the one issued here.”
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