The Fourth Amendment protection against “unreasonable searches and seizures” has been greatly overlooked at the US border. According to a report released by the US Customs and Border Patrol (CBP), in FY2015, 8,500 electronic devices were searched by border patrol authorities. The following year, that number more than doubled, reaching a whopping 19,033. And this year, nearly 15,000 searches have already been conducted.
Backing of the Courts
The steady rise in electronic searches at the border is partially due to the consistent ruling by federal courts that warrantless searches may be done at the border to uphold immigration law and to further national security interests. Two Supreme Court cases stand as precedent: United States v. Martinez-Fuerte and United States v. Flores-Montano. Both relieve border patrol officers of certain constitutional obligations because it’s within the government’s interest to protect the border.
Lawsuit
Seeking to change this allegedly unconstitutional state of affairs, the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF) have filed suit on behalf of eleven people who experienced first-hand the flagrant actions of border patrol officers.
The plaintiffs are a motley crew, consisting of two students, two journalists, a limousine driver, a business owner, a professor, a filmmaker, a programmer and a NASA engineer. Each plaintiff is a legal resident of the United States – most are natural born citizens and one is a lawful permanent resident. The defendants are the US Department of Homeland Security (DHS), CBP and US Immigration and Customs Enforcement (ICE) who have provided the policy directives behind intrusive practices deemed unconstitutional by the ACLU and the EFF.
The suit seeks nothing less than an injunction preventing Homeland Security from continuing the current search and seizure policy at the US border. As Nathan Freed Wessler, staff attorney at the ACLU, told Business Insider, “Searches of people at the border is an area where there’s a wide gap between what we think people’s rights are and what their facts are on the ground.” The ACLU seeks to close that gap.
Plaintiffs
In several cases, plaintiffs allegedly lost their phones to border patrol officers for several months. One plaintiff still hasn’t retrieved the lost device, which was seized in January. When the seizures occurred, the plaintiffs were returning either from vacation or from a business trip. None were subject to any criminal charges, according to an ACLU press release announcing the suit.
One case involved brute force. Akram Shibly, a filmmaker from New York, was returning from Toronto when a CBP officer demanded access to his phone. Having just been put through the rigmarole days prior, Shibly refused, at which point the officers restrained him – one choking Shibly and another forcibly binding his legs. After taking the phone from his pocket, the officers held it for an hour.
Preparing for the Border
Given the current state-of-play at the border, it may be a good idea to bone up on the available literature detailing methods for maintaining electronic privacy. In February, Wired magazine published a guide that may be useful. The magazine suggested downloading encryption tools like BitLocker and TrueCrypt. Another, more intense, recommendation is to lock yourself out of your device by setting up a 2-Factor Authentication system. Forensics expert Jonathan Zdziarski explains it in the “Lock Down 2FA” section of this blog post. The logic behind this tactic? It’s better to say “I can’t” than it is to say “I won’t.”
The EFF also published a guide in March, exploring in greater detail questions of risk, law and privacy at the border. It is divided into three sections. Part 1 focuses on the “risk assessment factors” to consider when approaching the border. The second part provides an overview of the law and policy surrounding border patrol practices. The third and final part explores at length the various technological methods for protecting one’s electronic privacy.
Closing Remarks
For advocates, the problem is crushingly simple. The current practice at the border blatantly violates the US Constitution. Mr. Shibly perhaps put it best in the ACLU press release: “Border agents should not be able to coerce people into providing access to their phones, physically or otherwise.”
