There has been a sharp rise in the number of searches of smartphones and laptops being carried out by US Customs and Border Protection (CBP) officers.
This has resulted in privacy campaigners saying enough is enough, and they launched a federal lawsuit to stop this in 2017, saying the searches are often warrantless and therefore “unconstitutional”.
This was evidenced last month when US border staff detained former Mozilla CTO and now Apple employee Andreas Gal at San Francisco airport, following a business trip aboard.
Gal was detained for three hours after he refused to unlock his work Macbook Pro and iPhone XS. Both were clearly labelled as “Property of Apple. Proprietary.”
He was apparently aggressively interrogated when he repeatedly asked the border agents to speak to Apple or a lawyer before he would unlock his devices.
Gal felt the three agents were carrying out an unreasonable search and seizure, and then refused to answer any more of their questions. He was eventually released.
And it seems that experiences like this are on the rise for travellers to the United States, and phone and laptop searches at the US border have apparently quadrupled.
“In September 2017, we, along with the Electronic Frontier Foundation, sued the federal government for its warrantless and suspicionless searches of phones and laptops at airports and other U.S. ports of entry,” blogged the American Civil Liberties Union (ACLU).
“The government immediately tried to dismiss our case, arguing that the First and Fourth Amendments do not protect against such searches,” it said. “But the court ruled that our clients – 10 U.S. citizens and one lawful permanent resident whose phones and laptops were searched while returning to the United States – could move forward with their claims” it said.
The ACLU said that since then, US Customs and Border Protection and US Immigration and Customs Enforcement have had to turn over documents and evidence about why and how they conduct warrantless and suspicionless searches of electronic devices at the border.
It got officers to testify under oath and said that what it learned was “alarming”, and it is now back in court with this new evidence asking the judge to skip trial altogether and rule for its clients.
“The information we uncovered through our lawsuit shows that CBP and ICE are asserting near-unfettered authority to search and seize travellers’ devices at the border, for purposes far afield from the enforcement of immigration and customs laws,” wrote the ACLU.
“Both agencies allow officers to retain information from travellers’ electronic devices and share it with other government entities, including state, local, and foreign law enforcement agencies,” it wrote.
“Let’s get one thing clear: The government cannot use the pretext of the “border” to make an end run around the Constitution,” it said. “The border is not a lawless place. CBP and ICE are not exempt from the Constitution. And the information on our phones and laptops is no less deserving of constitutional protections than, say, international mail or our homes.”
Warrantless and suspicionless searches of our electronic devices at the border violate the Fourth Amendment, and also violate the First Amendment, it warned.
That is why it is now asking a federal court to rule that border agencies must do what any other law enforcement agency would have to do in order to search electronic devices: namely get a search warrant.
In January this year a US judge threw a very large spanner into efforts by US authorities to get suspects to unlock their electronic devices.
Northern California federal judge Judge Kandis Westmore issued the potential landmark ruling when she decided that American law enforcement officials could not force a person to unlock their mobile phone with their face or finger.
In October 2018 it should be remembered, the FBI forced an owner of an Apple iPhone X to unlock his device using its built in facial recognition.
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