U.S. customs can seize your laptop or phone without a warrant. Advocates cry foul in court

U.S. border agents can seize your laptop or smartphone when you reenter the country after traveling abroad, and do so without a warrant. Privacy advocates think the practice violates your constitutional rights.

On Tuesday, the Electronic Frontier Foundation (EFF) and American Civil Liberties Union (ACLU) asked a federal court to rule without trial that the Department of Homeland Security disregards the First and Fourth Amendments.

The groups filed documents and deposition testimony that they say reveals that the U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE) authorize border officials to rifle through travelers’ phones and laptops for general law enforcement purposes and consider requests from other government agencies when deciding whether to conduct such warrantless searches. These could include searches to enforce bankruptcy, environmental, and consumer protection laws, and for intelligence gathering or to advance pre-existing investigations. 

Border agents watch as protesters on the Mexico side of the border demonstrate against policies of President Donald Trump while U.S. Department of Homeland Security Secretary Kirstjen Nielsen tours a replacement border fence construction site on April 18, 2018 in Calexico, Calif.

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The EFF and ACLU added that the agencies also assert the authority to search electronic devices when the subject of interest is someone other than the traveler –perhaps a journalist or scholar with foreign sources, or a traveler who does business with someone under investigation.

“The evidence we have presented the court shows that the scope of ICE and CBP border searches is unconstitutionally broad,” said EFF senior staff attorney Adam Schwartz in a statement.

In her own statement, Esha Bhandari, staff attorney with the ACLU’s Speech, Privacy, and Technology Project, said in part that “The border is not a lawless place, ICE and CBP are not exempt from the Constitution, and the information on our electronic devices is not devoid of Fourth Amendment protections.” 

The information presented was part of a lawsuit filed back in September 2017, by the ACLU and EFF on behalf of 11 travelers whose electronic devices were searched at U.S. ports of entry. Ten of the plaintiffs are U.S. citizens and the other a permanent resident. Among them are a limousine driver, military veteran, journalists, students, an artist, a NASA engineer, and a business owner.

The organizations argue that searches of modern electronic devices, reveal the "sum of an individual’s private life," and "bear little resemblance" to searches of bags, wallets, address books, or briefcases, and that the "immense storage capacity" of such devices, means there can be millions of pages of text, thousands of photos or hundreds of videos.

According to the summary judgment motion, both CBP and ICE can confiscate devices for the purpose of searching them even after travelers leave the border.  "Under CBP policy, confiscation 'ordinarily' should not exceed five days but can be prolonged with a supervisor’s approval. ICE policy authorizes confiscation for a 30-day period that also can be extended with a supervisor’s approval."

The motion cites statistics that state that the CBP searched 33,295 devices in fiscal year 2018, up 9% from the prior fiscal year and up more than six-fold from fiscal year 2012.

Representatives at the CBP and ICE emailed USA TODAY to assert that they do not comment on matters under litigation. 

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