BIG BROTHER AT THE BORDER: U.S. Customs and Border Protection is searching, downloading, and storing electronic data from thousands of travelers' devices each year without a warrant.

AuthorBoddiger, David

Every year, tens of thousands of American travelers passing through international airports in the United States hit an unexpected snag that can end up potentially exposing their most private information to thousands of government employees--without a warrant, and often without cause.

By exploiting the border search exception to the Fourth Amendment's protection against unreasonable searches and seizures, which allows for warrantless searches at border crossings seeking evidence of contraband and other illegal activity, U.S. Customs and Border Protection (CBP) officers have been demanding the electronic devices of thousands of travelers, reviewing the content, and in some cases, downloading it. For electronic devices, including phones, laptops, tablets, or hard drives that are locked with pin numbers or passwords, border officials often demand the information they need to gain access to the devices.

This practice has been going on for years, as outlined in a 2009 CBP privacy impact assessment and a 2018 directive, and while officials downplay the scope of these warrantless searches, civil liberties groups, journalist protection advocates, lawyers, and lawmakers have all denounced this invasive behavior and demanded that the border exception for electronic devices be significantly narrowed nationwide, as it has been in some states by court rulings.

"The reason we have the Fourth Amendment requirement of a warrant is so that the government has to justify its intrusion into people's privacy," Hannah Zhao, an attorney at the Electronic Frontier Foundation, a digital rights group, tells The Progressive. "But if they can just use international border crossings as a pretext to search anyone, without any restrictions, then they basically have free rein to search anyone's electronic devices who is traveling internationally."

It may not seem like a big deal to let CBP officers rifle through your phone or laptop, but we store everything on our electronic devices--private conversations, photos and videos, contacts, passwords, tax and other financial information, and more. "Potentially more private information can be held on your phone, iPad, or laptop that you bring with you through the airport than in your entire house," says Jake Laperruque, deputy director of the Center for Democracy and Technology's Security and Surveillance Project. "So a search of an electronic device like that is very significant."

In the landmark Riley v. California case in 2014, the U.S. Supreme Court ruled that warrantless searches of electronic devices by law enforcement officers during arrests violate Fourth Amendment protections. In a unanimous opinion, Chief Justice John Roberts wrote, "Modern cellphones are not just another technological convenience. With all they...

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