[S]earches by federal agents at a customs station on the Vermont-Quebec border are cited as examples in a lawsuit challenging the practice of unwarranted examinations of travelers’ cellphones and other electronics as they enter the country.
The American Civil Liberties Union, its Massachusetts affiliate and the Electronic Frontier Foundation filed suit Wednesday in U.S. District Court in Boston challenging policies under which Customs and Border Patrol Agents can search electronic devices without a warrant.
“You carry your whole life with you on your phone,” said Ghassan Alasaad, a 50-year-old limousine driver who lives with his wife Nadia, a nursing student, in Revere, Massachusetts. They were detained July 12 at the Highgate Springs, Vermont, border crossing while returning from a family vacation in Canada.
“The government shouldn’t get to search through all of it whenever you travel internationally,” said Ghassan Alasaad, the lead plaintiff in the suit, Alasaad vs. Duke. Border agents “not only pried into our private life, they destroyed parts of it,” deleting videos of their daughter’s graduation, he said.
The ACLU said Customs and Border Protection, a division of the Department of Homeland Security, has maintained that laws and regulations allow customs officers to search travelers’ electronic devices without regard to the Constitution’s Fourth Amendment, which usually requires law enforcement officers to convince a judge they have probable cause to believe a crime has been committed and to get a warrant before conducting a search.
An email sent to the CBP press office seeking comment drew no immediate response.
Plaintiffs in the lawsuit want to see Fourth Amendment protections extended to electronic devices, saying that searches of them can expose even the people on a traveler’s contact list to unwarranted government scrutiny.
Sophia Cope, an attorney with the Electronic Frontier Foundation, said people “now store their whole lives, including extremely sensitive personal and business matters, on their phones, tablets, and laptops, and it’s reasonable for them to carry these with them when they travel. It’s high time that the courts require the government to stop treating the border as a place where they can end-run the Constitution.”
The Alasaads were returning from Quebec after their 11-year-old daughter had become ill. Mr. Alasaad turned over his unlocked cell phone on request, but Ms. Alasaad was reluctant. She wears a headscarf in public in accordance with her Muslim faith, and didn’t want male agents to see pictures of her without one.
“The officer told them that it would take two hours for a female officer to arrive,” the ACLU said in a statement, “and then more time to search the phone. Based on what they were told, the Alasaads understood that they would need to wait several hours for their phones to be searched. Exhausted and desperate to attend to their daughter’s health, the Alasaads departed without their phones, about six hours after being initially detained.” The phones were returned about two weeks later, with the graduation videos deleted, they said.
Another of the suit’s 11 plaintiffs, Isma’il Kushkush, also was subjected to a warrantless search of his smartphone at the Highgate Springs border station, according to the lawsuit.
It was the journalist’s third time being subjected to such searches, the lawsuit said. The first came in January, 2016, when he arrived in New York from Sweden, where he had been doing research on refugees as part of work toward a master’s degree at the Columbia School of Journalism. The second came when he was flying into Washington from working as an intern in Israel with The Associated Press. CBP officers took his phone, laptop, notebooks, voice recorder, camera and flash drives into another room and questioned him extensively about his work as a journalist.
The third time came July 30 in Highgate Springs, when Kushkush was required to turn over his phone and provide his password to it when returning from Quebec with fellow students in a Middlebury College language program. Again he was questioned about his work as a journalist.
ACLU lawyer Jessie Rossman said part of her group’s concern is that “we’re really seeing a spike in numbers.” There were about 15,000 of the types of searches targeted in the lawsuit in the first half of the current federal fiscal year, October through March, she said; about 30,000 are projected for the year. The numbers are triple those from two years earlier, and up about 50 percent from federal fiscal 2016, she said.
Border agents have asserted authority to operate within 100 miles of the United States’ international borders and coastlines. In Vermont, they have stopped and questioned motorists and bus passengers as far south as Hartford.
It was not immediately clear whether CBP would consider itself authorized to conduct searches without warrants of electronic devices that far from the border. Rossman said the ACLU had not heard of such searches “outside of a formal border checkpoint.”