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Border agents can search phones freely under new circuit court ruling

Border agents can search phones freely under new circuit court ruling

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The case includes a NASA scientist detained in 2017

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More than 1 million people traveled on planes in US on a single day ahead of Thanksgiving amid coronavirus pandemic
David Santiago/Miami Herald/Tribune News Service via Getty Images

A US appeals court has ruled that Customs and Border Protection agents can conduct in-depth searches of phones and laptops, overturning an earlier legal victory for civil liberties groups. First Circuit Judge Sandra Lynch declared that both basic and “advanced” searches, which include reviewing and copying data without a warrant, fall within “permissible constitutional grounds” at the American border.

Lynch ruled against a group of US citizens and residents objecting to invasive searches of their electronic devices. The group includes Sidd Bikkannavar, a NASA scientist who was detained and pressured to unlock a secure government-issued phone. Most of the incidents date to 2017, when then-President Donald Trump pushed for tighter border security alongside travel bans and other restrictions. But some took place earlier, reflecting long-standing concerns among groups like the Electronic Frontier Foundation and the American Civil Liberties Union, which backed this lawsuit.

“Searches of electronic devices do not involve an intrusive search of a person.”

A district court declared that CBP searches violated the Fourth Amendment by not requiring “reasonable suspicion” that the devices contained contraband. Lynch disagreed. “Electronic device searches do not fit neatly into other categories of property searches, but the bottom line is that basic border searches of electronic devices do not involve an intrusive search of a person,” she wrote. That lowers the bar for conducting them at the border, where the government’s interest in security is “at its zenith.”

Appeals courts have issued conflicting opinions on how electronic devices fall under the “border search exception,” a rule allowing warrantless searches that might otherwise be unconstitutional. Customs officials are able to conduct basic searches without “reasonable suspicion,” and they can conduct basic and advanced searches without obtaining a warrant. The exception is primarily intended for finding contraband or unauthorized entrants, but it applies to federal agents working within 100 miles of the US border — an area that covers most metropolitan areas.

Civil liberties advocates argue that modern phones and computers contain an unprecedented wealth of information, especially if agents can remotely retrieve emails or other material through the device. And Lynch suggested that Congress or the White House could establish clearer rules, which “may choose to grant greater protection than required by the Constitution.” However, today’s ruling reverses a decision that was previously considered a landmark victory.

The ACLU expressed dissatisfaction with the outcome. “Warrantless and suspicionless electronic device searches can give border officers unfettered access to vast amounts of private information about our lives,” said Esha Bhandari, deputy director of the ACLU’s Speech, Privacy, and Technology Project. “We are disappointed with the ruling and evaluating all options to ensure we don’t lose our privacy rights when we travel.”

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