Federal court rules baseless searches of travelers’ devices unconstitutional

A federal court on Tuesday ruled that random searches of international travelers’ phones and computers by the government violates the Fourth Amendment.

The Massachusetts District Court ruled that Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) must have a specific suspicion to be able to search a person’s phone or computer as they enter the country. 

It also ruled that both of the current random searches by the government, which were described as basic and advanced, violate the Fourth Amendment. 

{mosads}”The CBP and ICE policies for ‘basic’ and ‘advanced’ searches, as presently defined, violate the Fourth Amendment to the extent that the policies do not require reasonable suspicion that the devices contain contraband for both such classes of non-cursory searches and/or seizure of electronic devices; and that the non-cursory searches and/or seizures of Plaintiffs’ electronic devices, without such reasonable suspicion, violated the Fourth Amendment,” the ruling reads.

The decision came during a lawsuit brought by the American Civil Liberties Union (ACLU) and Electronic Frontier Foundation on behalf of 11 travelers.

Searches of travelers’ devices have spiked since the Trump administration came into power.

The Department of Homeland Security’s Office of the Inspector General (OIG) released a report in December that found that CBP officers searched 50 percent more electronic devices in fiscal 2017 — 29,000 devices among 397 million travelers — than they did the previous year. 

The OIG report concluded many of these electronic device searches were conducted improperly, without adequate supervision or adherence to preexisting policies.

“This ruling significantly advances Fourth Amendment protections for the millions of international travelers who enter the United States every year,” Esha Bhandari, an attorney at the ACLU’s Speech, Privacy, and Technology Project, said in a statement.

“By putting an end to the government’s ability to conduct suspicionless fishing expeditions, the court reaffirms that the border is not a lawless place and that we don’t lose our privacy rights when we travel.”

CBP declined to comment on the litigation, but noted to The Hill that during fiscal 2019, agents searched 40,913 electronic device searches which was less than .01 percent of arriving international travelers.

This report was updated at 8:30am