Frontera Fund News

New Order Offers Low Threshold for Searches of Electronic Devices at the Border

Written by Carmen Cornejo

The fight for privacy in the electronic era is getting critical and complicated. The federal government has enormous powers that can easily be abused into snooping our private lives, and our electronic devices can tell so much about ourselves.

As we reported in Lacey and Larkin Frontera Fund previously, borders and ports of entry are places where individuals can have their privacy and their Fourth Amendment rights easily violated, due to the power the federal government’s agents have in these settings.

U.S. Customs and Border Protection (CBP) issued a new policy January 4, 2018 related to border searches of electronic devices that is raising concerns among advocacy groups. Although the new policy is an improvement over previous guidelines, analysts with The Electronic Frontier Foundation (EFF), a nonprofit advocacy group dedicated to digital rights, stated that the recently issued CBP policy contains vague language that allows agents to violate travelers’ privacy rights.

Frequently, travelers are unaware that a simple search of their electronic devices by a CBP agent may be exceptionally intrusive and unconstitutional.

EFF and ACLU (American Civil Liberties Union) are noting that digital device searches at the border have more than tripled since the inauguration of President Trump.

CBP’s previous policy permitted agents to search travelers’ electronic devices at the border or points of entry (such as in airports’ customs areas) without a rational reason for suspicion to do so. Now, the policy distinguishes between two types of searches: basic and advanced.

In basic searches, agents manually search a device by tapping or moving the mouse of an electronic device in an effort to open applications or files. Advanced searches are when agents use external devices or software to do an in-depth forensic search and copy, review, share, etc. the contents of a device.

The updated policy states that basic searches can continue to be conducted even when there is no reason to suspect any illegal activity by the owner of the device. Advanced searches require border agents to have “reasonable suspicion of activity in violation of the laws enforced or administered by CBP,” meaning violation of immigration or customs laws.

This new distinction on searches of electronic devices at borders and ports of entry appears to be taken from the case U.S. v. Cotterman, which stated that agents needed reasonable suspicion to merit forensic searches.

EFF legal analysts are worried that the new order allows the so-called “basic” searches without reasonable suspicion, just invoking national security risks since there is no clarity on what that may be.

Additionally, legal analysts worry about the low standard of the term “reasonable suspicion” for electronic device searches at the border, without a court warrant and oversight of the searches.

EFF researchers are also uncomfortable with this order since a simple basic manual and apparently casual search on devices can bring substantial information that can create a highly personal profile and detailed information on the owner, such as activities, political affiliations, religious beliefs, finances, health, sex lives, relationships, etc.

Both ACLU and EFF are fighting cases in court in order to prevent this invasion of privacy.