Recently, the American Civil Liberties Union (ACLU), the Electronic Frontier Foundation, and the ACLU of Massachusetts, on behalf of 10 U.S. citizens and a permanent resident, sued the Department of Homeland Security (DHS) before the U.S. District Court for the District of Massachusetts over its warrantless searches of travelers’ electronic devices at the border.
Based on the statistics released by DHS’ Customs and Border Protection (CBP), the federal agency in charge of the country’s borders, around 189.6 million travelers arrived in the United States during the first six (6) months of this year. While it inspected only electronic devices of 14,993 arriving international travelers for the same period (or 008% out of the 189.6 million travelers), this is still a significant increase from the prior years (.002% in 2015 and .005 in 2016). Acknowledging the recent increase in warrantless electronic device searches, the CBP pointed out its mission to enforce the country’s laws in the digital age.
While the authority of the federal government to conduct warrantless searches of persons and conveyances at port of entries like airports has long been recognized by the U.S Supreme Court, the CBP has taken the position that this power includes the search of electronic devices, including password-protected laptops, phones, and other hand-held devices of both foreign nationals and U.S. citizens.
The CBP released a handout/sheet called “Inspection of Electronic Devices” which states that the CBP is allowed to inspect, search and detain “all persons, baggage, and merchandise arriving in, or departing from the United States”. If the CBP decides to “detain, for further inspection” any electronic device(s), the arriving traveler will be provided a copy of the sheet and a written receipt. After the CBP has completed its inspection or examination of the electronic device (which can include copying its contents), it will either return the device to the traveler or seize it, if the CBP determines that it is subject to seizure under the law.
Last June 20, 2017, Acting CBP Commissioner Kevin McALeenan, in response to questions propounded by the Senate, took the position that a US citizen will not be prevented from entering the US, even if the CBP determines his electronic device should be detained for further examination or if he refuses to give his electronic device’s PIN or password. He clarified that the CBP will inspect only information physically resident on the traveler’s electronic device, not information located on remote servers.
It will be interesting to see how the courts will decide on this important suit. Unless the court issues an injunction, the CBP's policy to conduct warrantless searches of electronic devices at ports of entry will continue. Because of its far-reaching effects, we anticipate that the case might eventually reach the U.S. Supreme Court.