³Ō¹ĻÖ±²„ and EFF Ask Court to Allow Legal Challenge to Proceed Against Warrantless Searches of Travelersā Smartphones, Laptops
Eleven Travelers in Groundbreaking Case Face Substantial Risk of Future Unconstitutional Searches
BOSTON ā The ³Ō¹ĻÖ±²„ and the Electronic Frontier Foundation the urged a federal judge today to reject the Department of Homeland Securityās attempt to dismiss an important lawsuit challenging DHSās policy of searching and confiscating, without suspicion or warrant, travelersā electronic devices at U.S. borders.
EFF and ³Ō¹ĻÖ±²„ represent 11 travelers ā 10 U.S. citizens and one lawful permanent resident ā 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 peopleās lives. The case also argues that the government must have probable cause to confiscate a travelerās device.
āSearches of electronic devices at the border are increasing rapidly, causing greater numbers of people to have their constitutional rights violated,ā said ³Ō¹ĻÖ±²„ attorney Esha Bhandari. āDevice searches can give border officers unfettered access to vast amounts of private information about our lives, and they are unconstitutional absent a warrant.ā
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 donāt have the right to bring the lawsuit and the Fourth Amendment doesnāt apply to border searches. Both claims are wrong, the EFF and ³Ō¹ĻÖ±²„ explain in a brief filed today in federal court in Boston.
First, the plaintiffs have āstandingā 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 anyoneās 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.
āOur 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,ā said EFF Staff Attorney Sophia Cope.
āBecause 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 doesnāt apply,ā said Cope.
Second, the plaintiffs argue that the Fourth Amendment requires border officers to get a warrant before searching a travelerās electronic device. This follows from the Supreme Courtās 2014 decision in Riley v. California requiring that police officers get a warrant before searching an arresteeās cell phone. The court explained that cell phones contain the āprivacies of lifeāā 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 peopleās 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 NASAās Jet Propulsion Laboratory in California.
- Jeremy Dupin is a journalist living in Massachusetts.
- Aaron Gach is an artist living in California.
- Ismaāil 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.
Todayās brief is here:
/alasaad-v-nielsen-opposition-defendants-motion-dismiss
For more EFF information on this case:
For more ³Ō¹ĻÖ±²„ information on this case:
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