Warrantless Border Searches Draw Call for Supreme Court Action
Civil liberties groups are, once again, challenging the federal government’s growing taste for searching travelers’ electronic devices at the border without suspicion or warrants. Last week, the Electronic Frontier Foundation (EFF), the American Civil Liberties Union, and the ACLU of Massachusetts asked the United States Supreme Court to intervene in an ongoing lawsuit and to apply Fourth Amendment protections to people at points of entry to the country, including airports.
“The lawsuit, Merchant v. Mayorkas, was filed in September 2017 on behalf of several travelers whose cell phones, laptops, and other electronic devices were searched without warrants at the U.S. border,” notes the groups’ joint press release. “In November 2019, a federal district court in Boston ruled that border agencies’ policies on electronic device searches violate the Fourth Amendment, and required border officers to have reasonable suspicion of digital contraband before they can search a traveler’s device. A three-judge panel at the First Circuit reversed this decision in February 2021.”
It’s important to get a determination one way or another about the application of constitutional protections for individual rights at the border because such searches have soared for years under administrations from both major political parties.
“Border Protection says searches increased fivefold in the final fiscal year of the Obama presidency,” the AP reported in 2017. Such searches almost quadrupled again, according to the ACLU, from 8,503 in 2015 to more than 30,000 in 2018. The government says those numbers further rose to 40,000 in 2019 (the pandemic travel slump slightly dampened search totals for 2020). If bipartisanship still exists in Washington, D.C., it truly comes together over agreement to violate individuals’ liberty and privacy.
“Border officers claim the authority to search devices for a host of reasons, including enforcement of tax, financial, consumer protection, and environmental laws—all without suspicion of wrongdoing,” EFF and the ACLU point out. “Border officers also search travelers’ devices if they are interested in information about someone other than the traveler—like a business partner, family member, or a journalist’s source.”
In 2016, Department of Homeland Security agents at LAX insisted on searching cell phones belonging to Maria Abi-Habib, then a reporter covering the Middle East for the Wall Street Journal. Uncertain why she was targeted, but speculating it was because of her contacts in the volatile region, she thwarted them by involving her employer’s considerable legal clout.
In 2019, Rolling Stone‘s Seth Harp was less fortunate at the airport in Austin, Tex
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