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Detained NASA engineer is suing Customs over border search, with help from ACLU

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Plaintiffs say the searches are unconstitutional

Shane Winter

A group of 11 plaintiffs — including NASA engineer Sidd Bikkannavar — is suing US Customs and Border Protection over warrantless border searches of phones and laptops. The suit is supported by lawyers from the American Civil Liberties Union and Electronic Frontier Foundation, which argue that the searches are unconstitutionally invasive. The case was filed this morning in the US District Court of Massachusetts.

“Our electronic devices contain massive amounts of information that can paint a detailed picture of our personal lives, including emails, texts, contact lists, photos, work documents, and medical or financial records,” said ACLU attorney Esha Bhandari in a statement. “The Fourth Amendment requires that the government get a warrant before it can search the contents of smartphones and laptops at the border.”

An employee of NASA’s Jet Propulsion Laboratory, Bikkannavar was detained while returning from South America in February. While being held at the airport, Bikkannavar was pressured to turn over the PIN code for his NASA-issued phone, a potentially severe breach of agency security. It’s still unclear whether any classified data was compromised during the search.

Another plaintiff, former US Air Force officer Diane Maye, experienced a similar search after returning from Europe in June. “I felt humiliated and violated. I worried that border officers would read my email messages and texts, and look at my photos,” she said in a statement. “This was my life, and a border officer held it in the palm of his hand.”

In May, the ACLU filed an administrative complaint against CBP over politically motivated border searches, in response to a similar search of US citizen Aaron Gach.

The group may face an uphill battle in court. For years, CBP has claimed the right to search electronic devices at the border, as part of the agency’s broader mandate to inspect goods entering the country. That mandate has traditionally been interpreted to include locally stored data, as some forms of data may constitute contraband. Because the agency’s mandate includes all goods entering the country, courts have not traditionally required agents to present particularized suspicion for each search, as would be required for domestic law enforcement.

The searches have grown both more aggressive and more controversial under President Trump, particularly as CBP has turned its focus to social media. According to CBP records, customs officials conducted 15,000 device searches in the first half of 2017. Many of those included specific scrutiny of social media accounts like Facebook and Twitter, particularly in the wake of new State Department provisions for social media screening of visa applicants. CBP officials say border searches do not extend to data held in the cloud, although the distinction is often difficult to draw in practice.