Border Patrol claims wide latitude for phone searches

Nadia Alasaad had her iPhone searched twice at the border, both times over her religious objections to male Border Patrol officers viewing photos of her and her daughters without their headscarves.

Zainab Merchant, founder and editor of a media website, had her phone searched multiple times despite her concerns about officers reading her attorney-client communications.

Border Patrol Federal Agent Gear on a bullet proof vest.

Journalist Jérémie Dupin’s phone contained information from his work, while Sidd Bikkannavar’s work phone owned by NASA’s Jet Propulsion Laboratory was searched despite it containing work information.

Some devices were seized, held up to 56 days, and later returned. All three had their personal and work information copied and stored on government computers.

These international travelers were among the 11 U.S. citizens and a permanent resident (Dupin) who sued U.S. government officials in 2019 for violating their Constitutional protections against unreasonable search and seizures.

At issue was whether government agencies can, without permission or official warrant, search anyone’s cell phone or other electronic devices, copy the electronic data, and retain that information on government computers for up to 75 years.

Massachusetts District Court Judge Denise J. Casper subsequently ruled that their Fourth Amendment rights had in fact been violated. She wrote:

“…the border search exception [to required warrants] is not limitless and must still be reasonable and subject to the same balancing of the level of intrusion upon an individual’s privacy and its necessity for the promotion of legitimate governmental interests…

“There is, however, growing precedent in the weighing of governmental interests against privacy interests at the border of requiring a showing of reasonable suspicion at least for forensic searches of digital devices.”

The order stopped short of issuing a requirement that Customs and Border Patrol and Immigration and Customs Enforcement obtain a warrant showing cause for future electronic device searches, nor did the court order the copied data be removed from government servers.

As a practical result, the Border Patrol has not stopped from continuing such potentially unconstitutional searches.

Privacy rights are shrinking

The Border Patrol is charged with protecting the borders and enforcing a wide range of federal laws ranging from war and national defense to Congressional legislation covering agriculture, banking, commerce, customs, criminal activity, navigation, railroads, shipping, communications, taxes, and, of course, aliens and naturalization.

Since 2001, the country’s fight against terrorism has resulted in sharply increasing intrusion in the lives of ordinary Americans.

New border walls, virtual border fences, and drones are just some of the latest technologies applied to border control.

Despite some federal court rulings declaring that such searches must be based on “reasonable suspicion,” there is a growing tally of electronic device searches that are part of a broader crackdown on the influx of illegal immigrants and cross-border illegal activities.

The Border Patrol asserts it has the authority to conduct random stops, searches and seizures of anyone’s electronic devices — including laptops and cell phones — virtually anywhere in the country.

It appears that authority is only limited by a 1975 U.S. Supreme Court ruling that declared “The Fourth Amendment therefore forbids stopping persons for questioning about their citizenship on less than a reasonable suspicion that they may be aliens.”

According to Border Patrol documents, more than 6,500 electronic devices belonging to international travelers were searched between 2008 and 2010, a number that grew to 10,000 in 2016, 30,200 in 2017, 33,296 in 2018 and 40,913 in 2019.

“The need for border searches of electronic devices is driven by CBP’s mission to protect the American people and enforce the nation’s laws in this digital age. … Border searches of electronic devices have resulted in evidence helpful in combating terrorist activity, child pornography, violations of export controls, intellectual property rights violations, and visa fraud,” the CBP explained in 2018.

However, the American Civil Liberties Union takes a very different view:

“If Americans do not continue to challenge the expansion of federal power over the individual, we risk forfeiting the fundamental rights and freedoms that we inherited — including the right to simply go about our business free from government interference, harassment and abuse.”

Data can be held for up to 75 years

When the CBP conducts a search of an electronic device, it captures a wide range of information about the device’s owner: contact information and phone number lists; detailed call logs; calendar events; cell tower, IP and GPS locations; all emails and text messages; social media information; pictures and videos; financial accounts and transactions; browser bookmarks; and notes and task lists.

The device owners also may not be aware that the CBP intends to search their data and that they cannot refuse the search even if there is no warrant.

What most people don’t realize is that information is copied and archived on government servers for up to 75 years — all except pornography which is banned by law from being kept on government computers unless it is part of an ongoing law enforcement investigation.

According to Homeland Security, the CBP uses the gathered information “to develop leads, identify trends associated with illicit activity, and further law enforcement actions related to terrorism, human and narcotic smuggling, and other activities posing a threat to border security of national security or indicative of criminal activity.”

Homeland Security acknowledges that retaining this information presents a risk to Constitutionally protected privacy rights, but also insists this risk is mitigated by requiring “trained forensic technicians” to determine if the information is relevant to case agents.

Broad search powers apply to electronic devices

In a July 2020 Homeland Security report on privacy issues relating to electronic devices, the agency concluded that border patrol agents can legally “search and extract” and make “mirror copies” of any information held on “laptop computer, thumb drives, compact disks, DVDs, mobile phones, SIM cards, digital cameras, vehicles” and any other device capable of storing electronic information.

Such searches can be performed on anyone crossing the U.S. border, whether inbound or outbound, or on people between ports of entry or within the “extended border” (100 mile distance).

Sometimes, search warrants signed by a judge are used or consent is given by the device owners. But in “rare circumstances” Homeland Security says border agents can cite “exigent circumstances” to conduct warrantless searches.

Such circumstances range from the potential destruction or loss of evidence to an “imminent threat.”

The border patrol, despite court rulings to the contrary, claims the right to stop, detain and search anyone who sets foot within 100 miles of that border, whether with Canada or Mexico, or the Atlantic and Pacific Oceans and the Gulf of Mexico.

That includes a whopping two-thirds of all the people who live in the United States — more than 200 million people.

Consider that this area includes some of the country’s largest cities: New York, Los Angeles, Seattle, Chicago, Houston, Philadelphia, Boston, Phoenix, San Antonio, San Diego, Miami and Tampa.

For these people, their Constitutional rights, and, in particular, their right to be protected from “unreasonable search and seizure” as spelled out in the Fourth Amendment, simply does not exist as far as the Border Patrol is concerned.

“In this 100-mile zone, CBP has claimed certain extra-constitutional powers,” according to the ACLU.

Border Patrol agents can even enter and search any private property (except for residences) within 25 miles of the border without a warrant.

For example:

A decade ago, about 300 legal immigrants were arrested and subsequently released by Border Patrol agents searching railroad and bus stations in Rochester, NY, as part of a program that rewarded high levels of arrests with cash bonuses and gift cards.
Agents entered courthouses and hospital maternity wards in Tucson, AZ, to interrogate patients and visitors. According to the ACLU, one woman was forced to give birth while an agent remained in the room.
Residents of the Olympic Peninsula in Washington State sued the Border Patrol to challenge their stopping vehicles and interrogating occupants without any legal justification. The case was settled when the CBP agreed to require agent training on the Fourth Amendment protections relating to illegal search and seizure.

Occasionally, the federal courts have addressed the powers of the Border Patrol:

In 2005, a Maine District Court judge upheld a marijuana arrest resulting from a CBP traffic checkpoint search in Bangor, some 50 miles from the border.
Another CBP search conducted more than 200 miles from the border with Mexico resulted in a very different Circuit Court of Appeal ruling, declaring the search far exceeded the agency’s authority.

The 100-mile rule was established in 1953, at a time when there were fewer than 1,100 Border Patrol agents, a number that today exceeds 21,000.

Today’s CBP insists it can operate anywhere in the U.S., provided it has a “reasonable belief” that an immigration violation or crime has occurred.