US border agents only need “reasonable suspicion” and no search warrant to search travellers’ smartphones and laptops
Travellers to the United States are now at greater risk than ever of having their electronic devices searched when at the US border.
This is after a federal judge on Tuesday ruled that US border agents only need “reasonable suspicion” to search travellers’ smartphones and laptops at airports and other US ports of entry. Even worse, a search warrant is also not needed.
The practice of US border agents searching passenger electronic devices was highlighted in April this year, when Apple employee Andreas Gal was detained at San Francisco airport after a business trip aboard.
Three US Customs and Border Protection (CBP) officers had detained US citizen Gal, (formerly the chief technology officer at Mozilla Foundation) for three hours after he refused to unlock his work Macbook Pro and iPhone XS.
Both devices were clearly labelled as “Property of Apple. Proprietary.”
Gal said that the border agents “started to question me aggressively regarding my trip, my current employment, and my past work for Mozilla.”
“The agents proceeded to search my belongings and demanded that I unlock my smartphone and laptop,” wrote Gal. “This was rather concerning for me. My phone and laptop are property of my employer and contain unreleased software and proprietary information. I’ve signed a non-disclosure agreement promising not to give anyone access.”
Gal repeatedly asked the border agents to speak to Apple or a lawyer before he would unlock his devices.
“This request seemed to aggravate the customs officers,” wrote Gal. “They informed me that I had no right to speak to an attorney at the border despite being a US citizen, and threatened me that failure to immediately comply with their demand is a violation of federal criminal code 18 USC 111.”
Gal felt the three agents were carrying out an unreasonable search and seizure, and then refused to answer any more of their questions.
“The interrogation and threats continued for some time, which I endured silently,” he said. “Despite initial threats that they would keep my devices if I didn’t unlock them, I was eventually permitted to leave the customs area with my devices. The customs agents did however keep my Global Entry card as a punishment for not complying with their demands.”
And now it seems that the US legal system has given its blessing to these warrantless searches of electronic devices, although with some restrictions.
Reuters reported that US District Judge Denise Casper in Boston ruled in a lawsuit by 11 travellers that border officials need to be able to point to specific facts to justify searching someone’s devices.
The good news is that this is now a higher standard for agents with the US Customs and Border Protection and the US Immigration and Customs Enforcement than the previous regime.
The US judge reportedly said that while officials have a “paramount” interest in protecting the border, the privacy interests of travellers whose troves of personal information could be otherwise searched without cause had to balanced against it.
“This requirement reflects both the important privacy interests involved in searching electronic devices and the Defendant’s governmental interests at the border,” Casper wrote.
The judge said that to the extent CBP and ICE policies allowed for such searches without cause, they violated the US Constitution’s Fourth Amendment protections against unreasonable searches and seizures.
But unfortunately Casper declined to order agents to have probable cause and secure warrants before searching devices – a higher standard sought by the plaintiffs’ lawyers at the American Civil Liberties Union and Electronic Frontier Foundation.
Esha Bhandari, an attorney with the ACLU, reportedly said in a statement that the ruling “significantly advances Fourth Amendment protections for the millions of international travellers who enter the United States every year.”
“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,” Bhandari said.
NBC has reported previously that CBP maintains dossiers of US citizens and targets lawyers, journalists, and activists, and monitors social media activity of US citizens, Apple’s Gal has previously stated.
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