Changes to Warrantless Device Searches at US Border Pose Potential Problems for Privacy

Security check

Last Thursday, January 4th, 2018, US Customs and Border Protections (CBP) released a new Directive outlining their changes regarding border search of electronic devices. The purpose for these changes is to help detect evidence relating to crimes such as terrorism, smuggling, and child pornography that may be contained on these devices. They argue that the information obtained through these searches can provide valuable information on crime as the border can act as a pit-stop, at which Officers and Officials can identify and assess potential risks as people travel in and out of the country. These changes, however, have been criticized by the American Civil Liberties Union (ACLU) as a part of their ongoing battle to establish the right of individuals to cellphone privacy.

These changes come after a surge in warrantless device searches over the past 2 years, as well as the case Alasaad v Duke filed in part by the ACLU on September 13th, 2017. The issue brought forth by the Plaintiffs in this case is that these warrantless searches are a potentially unconstitutional invasion of privacy, given the private information an individual can have on their device.

The ACLU and the Electronic Frontier Foundation have taken aim at what they see to be a growing trend at border stops. In September, they pointed to the CBP’s statistics, stating: “CBP officers conducted nearly 15,000 electronic device searches in the first half of fiscal year 2017, putting CBP on track to conduct more than three times the number of searches than in fiscal year 2015 (8,503) and some 50 percent more than in fiscal year 2016 (19,033)” (ACLU, September 13th, 2017, Alasaad v Duke).

At the time these statistics were published in April, no court had ruled that a warrant was required to search cellphones, however, the case Carpenter v United States may provide a new precedent to challenge these cellphone searches at the border. Section 5 of the Directive, which outlines the procedure of these searches, gives Officers the authority to ask for passwords to access and search your devices. However, this must be done with internet connection turned off, as they are only permitted to search what’s on the device, not to anything the device is connected to, meaning they can’t gain access to your emails or Facebook. If you are crossing the border, keep in mind these changes mean they can look at pictures, videos, and text messages you have on your devices, including your phone, laptop, memory sticks, or external hard-drives.

This blog post was written by a CCLA-PBSC RightsWatch student. Views expressed do not necessarily reflect the view of the CCLA or PBSC

About the Author

Nathan Prendergast
Nathan is a second year in the JD program at the University of Windsor Faculty of Law.