Virtually everyone has a phone in their hands or a laptop or tablet in their bag these days. It’s hard to imagine life without our electronic devices. However, with the increased reliance on technology comes new safety concerns at our border crossings.
In August of 2009, the Department of Homeland Security initiated a policy that stated U.S. Customs and Border Protection (CBP) officers were allowed to search electronic devices without any cause or suspicion. In January 2018, the policy was updated to include a need for reasonable suspicious to conduct certain kids of searches, but 11 travelers filed a lawsuit, and the Judge in that case ruled last month that reasonable suspicion was required for any search of any electronic device to take place.
Progression of Policy
The initial policy imposed in 2009 allowed CBP officers to conduct searches of electronic devices without requiring any suspicion of wrongdoing. The updated policy in 2018 attempted to tighten that restriction by distinguishing between a “basic” search and an “advanced” search. A basic search, which consisted of an officer simply using the device and opening applications, could be conducted at will. An advanced search is defined in the policy as “any search in which an Officer connects external equipment…to an electronic device not merely to gain access to the device, but to review, copy, and/or analyze its contents.” According to the policy, a CBP officer must have reasonable suspicion of illegal activity in order to perform an advanced search.
While the updated policy is more detailed, the American Civil Liberties Union, while representing the 11 travelers in their lawsuit against CBP, argued that the searches conducted by CBP at the border crossing violated the Fourth and First Amendments of the Constitution. CBP contended that the potential safety threat outweighed any violation to those crossing the border.
While it may be difficult for some to imagine how a CBP agent looking through your phone could be a violation, it was quite clearly a violation for Nadia Alasaad, who is one of the plaintiffs in the lawsuit. Ms. Alasaad is Muslim, and it is a violation of her religious beliefs for any man to see her or her daughter without their hijabs (or head scarves) on, but that’s exactly what happened when a CBP officer examined her daughter’s phone and saw a picture of the two women.
U.S. District Court Judge Denise Casper agreed in part with the plaintiffs and the ACLU when she ruled that reasonable suspicion is necessary to conduct any sort of search of any electronic device. She failed to the see the difference between a basic and advanced search, citing the opportunity for either to expose confidential, sensitive information. The Judge also agreed with CBP, in part, by not requiring warrants to be obtained to perform searches. She acknowledged the need for searches to be conducted where reasonable suspicion exists in order to protect the safety of the country.