This week’s US federal court decision that travellers’ phones and laptops cannot be searched arbitrarily isn’t necessarily as big a win for privacy advocates as it might first appear. Conditions apply.
The case, heard in the the District Court in Boston, Massachusetts by Justice Denise J Casper, concerns 11 travellers who had their mobile devices searched without warrant by US Customs and Border Patrol (CBP) and Immigration and Customs Enforcement (ICE). In some cases, the devices being searched were confiscated.
One was a lawful permanent resident, the rest were US citizens. Such searches, they argued, breached their rights under the Fourth Amendment of the United States Constitution against unreasonable searches and seizures.
Casper agreed, but it’s more complicated than that.
At the heart of this case is a legal doctrine called the border search exception, which allows searches and seizures at international borders without a warrant or probable cause. All searches at borders are deemed to be reasonable.
According to Professor Bobby Chesney at the University of Texas School of Law, this doctrine has been around “forever”. There are “plainly legitimate real good-faith reasons to try to detect contraband”, he says, and that’s “a very worthy government goal”.
“The underlying justification is the general plenary [unqualified or absolute] control of the federal government over the border, and especially the interest in protecting the integrity of the nation and its laws, including especially inspection for contraband or things that shouldn’t come in,” Chesney said on the National Security Law Podcast on Wednesday.
“In a purely tangible materials world there is only so much there’s going to be with you that’s coming in, and there’s only so much invasion of your privacy that’s entailed necessarily in searching for contraband,” he said.
“The thing that’s changed is the classic story of technological disruption. So now we carry our lives with us on our phones and laptops, and most of us most of the time if we’re doing international travel are gonna more or less have little or no choice but to take that stuff with us.”
Judge Casper, at the district court level, has effectively agreed that the world of information that’s suddenly exposed by what Chesney called “device deep-dives” had a “wildly different amount of privacy cost”.
As Casper wrote in her summary judgement: “Even a basic search allows for both a general perusal and a particularised search of a traveler’s personal data, images, files, and even sensitive information.”
In that context, a “basic search” is a search of the device using its native operating system — logging in and having a look around.
An “advanced search”, according to Chesney, is “where you use some external equipment, wirelessly or by wire, to more thoroughly and comprehensively [explore and] perhaps even copy [data]”. A device may be seized for days and examined using digital forensic tools.
But Casper hasn’t said that CBP and ICE need a warrant. She’s said they they need “reasonable articulable suspicion”.
“Moreover, the reasonable suspicion that is required for the currently defined basic search and advanced search is a showing of specific and articulable facts, considered with reasonable inferences drawn from those facts, that the electronic devices contains contraband,” she wrote.
Chesney says the judgment’s requirements, which fall short of needing a warrant, are “not as big a victory for the privacy side”.
“This would be a dramatically bigger deal if they’re saying ‘Nope, go get a warrant based on probable cause shown in order to search these devices’,” he said.
“On the other hand I think this contraband element is potentially a big deal. Potentially.”
Yes, the judgment talks about contraband specifically.
“Well that narrows it. It’s very interesting to think about that way,” Chesney said.
Or as the colleague Professor Steve Vladeck put it: “It’s not just reasonable suspicion of something sketchy … so some of it depends on how it gets operationalised in practice.”
Vladeck said it’s “long past time” for the US Supreme Court to revisit the question of border searches. The last big case was United States v. Martinez-Fuerte in 1976, which allowed CBP to set up permanent or fixed checkpoints on public highways leading to or away from the Mexican border.
“Meshing the border search doctrine with the sort of shifts in the Supreme Court’s approach to technology is long overdue,” he said.
For his part, Chesney would like to see Congress get involved.
“We do this in spades with all the FISA [Foreign Intelligence Surveillance Act] stuff, the 702 stuff, and things like ‘well let’s require by statute certain types of record-keeping and reporting so we could learn what really happen’,” he said.
Chesney proposed statutory requirements for “writing down of the predicates that constitute these specific and articulable facts that the device contains contraband”, collecting data over, say, two years and reporting to the judiciary committees or the like.
“That’s a crazy idea. I mean obviously it’s never gonna happen,” he said.
“Yet we seem so quick to be willing to get Congress involved with legislation including oversight legislation on the intelligence collection side. But for these law enforcement activities we just sort of wait for courts to develop this idea or that idea.”
So, Casper’s decision is about points of entry to the US only, and about contraband only. It still doesn’t mean a warrant is required.
And there’s still a “national security” exemption.
And there’s still no reassurance for the 96% of the world’s population who are not US citizens or permanent residents, because none of the plaintiffs in this case were “aliens”.
As this typical explainer from Victor Malca Law describes, non-citizens do have some constitutional rights in the US, but there are “certain exceptions”.
“The constitution protects the rights of non-citizens within the US territory. You are technically outside US territory when you are still at the border or the airport. Thus, these constitutional rights don’t apply,” they write.
“Non-citizens are protected from unreasonable searches when they are inside the US. This means that searches and confiscations at the border are legal.”
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