The recent massacres in Orlando and San Bernardino have sparked a national debate on whether law enforcement should be able to access information on people's smartphones. But there's a quieter cellphone search that's taking place on our borders, and privacy rights activists say it's gone too far.
For years, the U.S. government has been seizing cellphones and performing warrantless searches at airports and points of entry along the northern and southern borders.
U.S. Customs and Border Protection's (CBP) airport and border security methods have continued after a 2014 Supreme Court decision requiring warrants for government searches of cellphones.
The Supreme Court did not address how the ruling should apply in the context of airports and points of entry.
“Since the 1800s there’s been a 4th amendment exception called the border search doctrine that allows searches to be performed routinely without a warrant,” Sophia Cope, a staff attorney for the digital rights group Electronic Frontier Foundation, told Fusion.
Activists and plaintiffs have challenged the issue in lower courts on a case-by-case basis, and in 2013 the U.S. Ninth Court of Appeals ruled that immigration authorities need “reasonable suspicion” to perform searches on electronic devices at ports of entry in California, Arizona, Alaska, Hawaii, Idaho, Washington, Nevada, Oregon and Montana.
But rights champions say the law is not evolving at the same pace as technology, and that lag is leading to potential violations of civil liberties. It basically allows the government to put cellphones in the same category as luggage, Cope says.
“There’s a growing concern when searching electronic items at the border because the amount of information we carry around on a laptop or phone is so big that there’s a much greater infringement on privacy,” says Jake Laperruque, a privacy fellow at the Constitution Project. “Twenty years ago you carried a suitcase but now on a phone you can carry an entire house worth of papers.”
CBP spokeswoman Jacqueline Wasiluk told Fusion cellphone searches at the border occur on a case-by-case basis. She said the Privacy Act prohibits the agency from commenting on individual travelers.
“Keeping America safe and enforcing our nation’s laws in an increasingly digital world depends on our ability to lawfully examine all materials entering the United States,” Wasiluk said.
The cellphone searches are guided by 2009 CBP policy directive that states that the purpose is to “help detect evidence relating to terrorism and other national security matters, human and bulk cash smuggling, contraband and child pornography.” The directive defines Electronic Device as “any devices that may contain information, such as computers, disks, drives, tapes, mobile phones and other communication devices, cameras, music and other media players, and any other electronic or digital devices.” It also states retention of devices should not exceed more than five days “unless extenuating circumstances exist.”
In 2009 the American Civil Liberties Union (ACLU) filed a Freedom of Information Act lawsuit to get documents detailing government policy on searches at U.S. border crossings. According to the organization’s review of the documents, “between October 2008 and June 2010 over 6,500 people traveling to and from the United States had their electronic devices searched at the border” and “nearly half of these people were U.S. citizens.”
The ACLU says the government has searched cameras, hard drives, flash drives, laptops, cellphones and other devices. “Between July 2008 and June 2009, border agents transferred data found on travelers electronic devices to other federal agencies over 280 times. Half of the time, these unnamed agencies asserted an independent basis for retaining or seizing the data,” reads the report.
Some of the searches are low-tech: an official manually checking text messages on a cellphone. While other searches reportedly involve downloading the entire phone's data onto a government computer.
Nathan Freed, a staff attorney focusing on privacy and technology for the ACLU, says some U.S. courts have drawn a distinction between forensic searches and traditional searches.
“A forensic search is when they plug the phone into a government computer system and download everything and then run a powerful software search against the data including photographs, photos, deleted items and contacts,” Freed said. “A traditional search is when they simply take the phone and try to find whatever they can by clicking and typing in the device’s operating system.”
Freed says the ACLU doesn't think the U.S. government should be doing either type of search without a warrant. He says authorities should reserve the right to seize a phone if they have reasonable suspicion, but only access the information on it with a warrant, and not treat it like any other piece of luggage.
“The government should be able to do its job regulating entry and exit according to federal law,” Freed said. “But that doesn’t mean they should be able to have carte blanche to rifle through people’s personal devices.”