Like it or not, we are now living in an electronic police state. Is this the big brother finally comes into our lives? According to our government, our privacy protections disappear from the very moment we set foot in any airport.
Even though we are protected by the Fourth Amendment against “unreasonable searches and seizures,” the Customs and Border Protection folks are able to take advantage of exceptions to this piece of constitutional protection by search through our electronic devices at an airport and are not required to establish reasonable suspicion or even to get a search warrant.
It has become a problem and is now getting even worse. Recently, the American Civil Liberties Union (ACLU) along with the Electronic Frontier Foundation decided to enter into a lawsuit on behalf of 11 travelers. The lawsuit is against the Department of Homeland Security. The plaintiffs are making the claim that suspicionless and warrantless searches on electronic devices at borders have violated their First and Fourth Amendments.
It appears that they may be right. CBP agents have gained enormous access to literally troves of personal data belonging to law-abiding citizens. Most people consider this as an affront to a person’s privacy and this access has to be revoked immediately.
For instance, we have the case where Sidd Bikkannavar, who is an engineer at NASA’s Jet Propulsion Laboratory, was subjected to an airport inspection in Houston. He was asked by agents for his passcode of a phone he owned.
This phone actually was issued by NASA, and even though Bikkannayar stated this fact, the agent demanded to have the code. Fearing that the phone would be seized and he might miss a connecting flight to LA, Bikkannavar gave in and provided the code.
After about 30 minutes, the agent came back and stated that the phone was analyzed with “algorithms” and no “derogatory” data was found.
The notion that an airport or border has become an area where privacies are reduced is really nothing new. And like Justice Rehnquist stated in 1977, in a case United States v. Ramsey, the very same Congress who proposed the Bill of Rights also passed the very first customs statute in the US too, and this gave officials complete authority to search “any ship or vessel, in which they shall have reason to suspect any goods, wares or merchandise subject to duty shall be concealed.”
It was also in Ramsey that Rehnquist declared, “That searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border should, by now, require no extended demonstration.”
Yet today, unlike 1977 or 1789, more than three quarters of American adults own smartphones. These devices contain vast amounts of data related to our personal and professional lives. CBP policy does not allow agents to access information housed on remote servers, but even a search of information resident on an electronic device can uncover videos, texts, photos and reveal what apps someone has downloaded.
These apps can expose dating habits as well as religious affiliations. Thanks to current policy, any traveler could be coerced into allowing CBP to access this private information without any suspicion that they have violated immigration law.
CBP searches of electronic devices are relatively rare, but the number of such searches has been increasing over the last few years. These searches do not always target travelers from terrorist hotspots, either. Bikkannayar is an American citizen and member of the Border Protection Global Entry program, which is designed for what CBP describes as “pre-approved, low-risk travelers.”
Earlier this year then-DHS Secretary John Kelly discussed, among other things, these electronic device searches at a Senate Homeland Security and Governmental Affairs Committee hearing. While some might think that the warrantless searches of electronic devices may be a valuable counter-terrorism tactic, Kelly did not cite a single instance where an electronic device search had lead to a terrorism charge or conviction.
As the recent ACLU and Electronic Frontier Foundation suit shows, these searches have disrupted the lives and violated the privacy of a NASA engineer, a former Air Force Captain, a Harvard graduate student, a nursing student, and entrepreneurs, all citizens with no connections to terrorist activity.
It’s important that the federal government keep us safe from foreign threats, and CBP should be able to examine phones and laptops belonging to people who are the subject of a warrant. But CBP should not have the authority to go on fishing expeditions for incriminating data, harassing and intimidating citizens and permanent residents without any evidence of wrongdoing.
