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Lawsuit challenges searches of electronic devices at borders

[JURIST] A group of individuals represented by the American Civil Liberties Union [advocacy website] filed a lawsuit [complaint, PDF] in the US District Court for the District of Massachusetts [official website] challenging the "searches and seizures of smartphones, laptops, and other electronic devices" at the borders. The complaint alleges that such searches "absent a warrant supported by probable cause and without particularly describing the information to be searched" are a violation of the First and Fourth [text, PDFs] Amendments to the US Constitution. The plaintiffs in the case were ordinary citizens or permanent residents whose electronic devices were seized and searched, and in some cases were retained by federal authorities for months before being returned. The defendants in the case include the Department of Homeland Security (DHS), Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE). The crux of the complaint is that modern electronic devices hold massive amounts of personal information such as political or social opinions, and sensitive medical, legal and financial information. Additionally, electronic devices in this age carry a large number of intimate photographs and messages. Thus, the complaint alleges that:

The volume and detail of personal data contained on these devices provides a comprehensive picture of travelers' private lives, making mobile electronic devices unlike luggage or other items that travelers bring across the border .... Because government scrutiny of electronic devices is an unprecedented invasion of personal privacy and a threat to freedom of speech and association, searches of such devices absent a warrant supported by probable cause and without particularly describing the information to be searched are unconstitutional.
The complaint takes direct aim at CBP's 2009 Directive [text, PDF] titled "Border Searches of Electronic Devices Containing Information" and ICE's 2009 Directive [PDF] titled "Border Searches of Electronic Devices," which allegedly authorize "warrantless and suspicionless searches and confiscations of mobile electronic devices." The complaint requests various forms of relief, including an injunction against further confiscation and searches, attorneys' fees and costs, a declaration that plaintiffs' Fourth Amendment rights were violated, and an injunction to force the government to "expunge all information gathered from, or copies made of, the contents of Plaintiffs' electronic devices, and all of Plaintiffs' social media information and device passwords."

Concern regarding searches and seizures of electronic devices at the borders is rising and lawmakers have recognized such concerns. In April, a group of US Senators introduced [JURIST report] a bipartisan bill to require government agents to get a warrant when searching electronic devices of US citizens at the border. Privacy in general has been a contentious topic around the world in the past two years. In June, Japan's parliament passed [JURIST report] a controversial "anti-conspiracy" bill aimed at improving security and combating terrorism that critics claim will violate privacy rights. In May, Germany's Federal Court of Justice [official website] ruled [JURIST report] that government websites can store personal data as long as they provide adequate justification. The same month, the Nevada Senate [official website] approved [JURIST report] a bill requiring Internet providers to disclose what types of personal information they collect from users. In April, JURIST Guest Columnist Andreas Kuersten discussed [JURIST op-ed] the flawed reasoning of a legislation signed earlier this year that allows Internet Service Providers to sell customers' personal information without their consent. Also in April, a group of US Senators introduced [JURIST report] a bipartisan bill to require government agents to get a warrant when searching electronic devices of US citizens at the border.

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Paper Chase is JURIST's real-time legal news service, powered by a team of 30 law student reporters and editors led by law professor Bernard Hibbitts at the University of Pittsburgh School of Law. As an educational service, Paper Chase is dedicated to presenting important legal news and materials rapidly, objectively and intelligibly in an accessible format.

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