International travelers entering the United States already suffer the pain of long lines and uncomfortable questions by immigration officers. Add a peek at their electronic device’s content and social media activity, and you get a civil rights nightmare.
That’s precisely what’s been happening since the Bush Administration, when federal officers at the border got the green light to demand U.S. citizens and non-citizens to unlock their phones, and other electronic devices , so that officers could search through their apps and files -- even making copies of everything.
This invasion of privacy has created a situation that’s become unsustainable. Electronic device searches at U.S. borders have seen an alarming increase in recent years, going from 8,383 in 2016, to almost 15,000 in 2017 -- almost doubling in just one year.
Is the practice constitutional?
While civil rights groups and privacy activists claim it's a clear violation of the Fourth Amendment, the Department of Homeland Security argues that the courts have long held that those protections do not apply at international borders.
The Fourth Amendment to the Constitution holds that people have a right to be secure in their “persons, houses, papers, and effects” against unreasonable searches and seizures.
“There’s no reason the Constitution’s safeguards against unwarranted searches shouldn’t also apply when we travel internationally given the ubiquity of these devices, and their ever-growing capacity to track the minutiae of our private lives,” the American Civil Rights Union argues.
However, the fact is that federal courts haven’t weighed in on the constitutionality of the practice yet.
But in 2014, the Supreme Court ruled that law enforcement needed to have a warrant to search electronic device when someone is arrested. “With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life,” Chief Justice John Roberts wrote.
DHS officials claim that since the search in that case didn’t occur at the border, the ruling doesn’t apply to them. And we could find out if that holds true when the U.S. Court of Appeals for the Fourth Circuit rules on a criminal case concerning the constitutionality of the searches at the border.
In addition to the lawsuit, opponents of the practice have another way of stopping what they feel is a clear violation of civil rights: a bipartisan group of lawmakers in the Senate and House introduced a bill that would require law enforcement officials to get a warrant before looking into your phone, computer or any device containing personal information.
The bill also seeks more transparency from the Department of Homeland Security and requests that the federal government create and publish statistics on the searches they conduct. “The government should be focusing in on the real threats, not creating a digital dragnet for Americans returning to or leaving the United States,” said U.S. Senator Ron Wyden from Oregon, one of the sponsors of the bill.
How did the DHS respond? They argue that looking into traveler’s electronic devices is just like searching their luggage: “As the world of information technology evolves, the techniques used by law enforcement agencies must also evolve to identify, investigate, and prosecute individuals using new technologies,” DHS explained in 2009.