ACLU and EFF Ask Court to Allow Legal Challenge to Proceed Against Warrantless Searches of Travelers’ Smartphones, Laptops

BOSTON — The American Civil Liberties Union and the Electronic Frontier Foundation the urged a federal judge today to reject the Department of Homeland Security’s attempt to dismiss an important lawsuit challenging DHS’s policy of searching and confiscating, without suspicion or warrant, travelers’ electronic devices at U.S. borders.

EFF and ACLU represent 11 travelers — 10 U.S. citizens and one lawful permanent resident — whose smartphones and laptops were searched without warrants at the U.S. border in a lawsuit filed in September. The case, Alasaad v. Neilsen, asks the court to rule that the government must have a warrant based on probable cause before conducting searches of electronic devices, which contain highly detailed personal information about people’s lives. The case also argues that the government must have probable cause to confiscate a traveler’s device.

“Searches of electronic devices at the border are increasing rapidly, causing greater numbers of people to have their constitutional rights violated,” said ACLU attorney Esha Bhandari. “Device searches can give border officers unfettered access to vast amounts of private information about our lives, and they are unconstitutional absent a warrant.”

The plaintiffs in the case include a military veteran, journalists, students, an artist, a NASA engineer, and a business owner. The government seeks dismissal, saying the plaintiffs don’t have the right to bring the lawsuit and the Fourth Amendment doesn’t apply to border searches. Both claims are wrong, the EFF and ACLU explain in a brief filed today in federal court in Boston.

First, the plaintiffs have “standing” to seek a court order to end unconstitutional border device searches because they face a substantial risk of having their devices searched again. This means they are the right parties to bring this case and should be able to proceed to the merits. Four plaintiffs have already had their devices searched multiple times.

Immigration and Customs Enforcement (ICE) policy allows border agents to search and confiscate anyone’s smartphone for any reason or for no reason at all. Customs and Border Protection (CBP) policy allows border device searches without a warrant or probable cause, and usually without even reasonable suspicion. Last year, CBP conducted more than 30,000 border device searches, more than triple the number just two years earlier.

“Our clients are travelers from all walks of life. The government policies that invaded their privacy in the past are enforced every day at airports and border crossings around the country,” said EFF Staff Attorney Sophia Cope.

“Because the plaintiffs face being searched in the future, they have the right to proceed with this case. They deserve a ruling about whether the government must stop treating the border as a place where the U.S. Constitution doesn’t apply,” said Cope.

Second, the plaintiffs argue that the Fourth Amendment requires border officers to get a warrant before searching a traveler’s electronic device. This follows from the Supreme Court’s 2014 decision in Riley v. California requiring that police officers get a warrant before searching an arrestee’s cell phone. The court explained that cell phones contain the “privacies of life”— a uniquely large and varied amount of highly sensitive information, including emails, photos, and medical records. This is equally true for international travelers, the vast majority of whom are not suspected of any crime. Warrantless border device searches also violate the First Amendment, because they chill freedom of speech and association by allowing the government to view people’s contacts, communications, and reading material.

Below is a full list of the plaintiffs along with links to their individual stories, which are also collected here:

• Ghassan and Nadia Alasaad are a married couple who live in Massachusetts, where he is a limousine driver and she is a nursing student.
• Suhaib Allababidi, who lives in Texas, owns and operates a business that sells security technology, including to federal government clients.
• Sidd Bikkannavar is an optical engineer for NASA’s Jet Propulsion Laboratory in California.
• Jeremy Dupin is a journalist living in Massachusetts.
• Aaron Gach is an artist living in California.
• Isma’il Kushkush is a journalist living in Virginia.
• Diane Maye is a college professor and former captain in the U. S. Air Force living in Florida.
• Zainab Merchant, from Florida, is a writer and a graduate student in international security and journalism at Harvard.
• Akram Shibly is a filmmaker living in New York.
• Matthew Wright is a computer programmer in Colorado.

Today’s brief is here:
https://www.aclu.org/alasaad-v-nielsen-opposition-defendants-motion-dismiss

For more EFF information on this case:
https://www.eff.org/cases/alasaad-v-duke

For more ACLU information on this case:
https://www.aclu.org/news/aclu-eff-sue-over-warrantless-phone-and-laptop-searches-us-border