A Jet Propulsion Laboratory engineer, a California artist, a limousine driver and several other Americans have sued the Department of Homeland Security and Customs and Border Protection over what they say are unconstitutional and warrantless searches of their digital devices at the United States border.
The lawsuit, which was filed in federal court in Massachusetts on Wednesday, is the first of its kind to directly challenge the government’s claim that it can demand travelers’ passwords at the border in order to search a device in the wake of a key 2014 Supreme Court decision. The plaintiffs are being represented by attorneys from the American Civil Liberties Union and the Electronic Frontier Foundation.
Some of the plaintiffs’ stories have been previously reported in the media, including by Ars. In May 2017, we reported the story of Aaron Gach, who told us that border agents threatened to “be dicks” if he didn’t hand over the password to his phone upon his arrival at San Francisco International Airport.
Each of the plaintiffs tell a similar story: they were returning home after a trip abroad, when a CBP agent demanded that each of them write down their passwords or otherwise unlock their smartphones. In many cases, the encounter, often accompanied by many hours of delay, is described in the complaint as “coercive,” where travelers have “no meaningful choice” other than to comply with agents’ demands.
According to the government’s own figures, there has been a notable uptick in digital device searches at the border—even before the change of administration in January 2017.
Federal authorities rely on what’s known as the “border doctrine“—the legal idea that warrants are not required to conduct a search at the border. This legal theory has been generally recognized by courts, even in recent years.
The 2014 Supreme Court case, known as Riley v. California, found that police needed a warrant to search a cell phone during an arrest. The government had argued that searching a cell phone was just like searching someone’s wallet or someone’s pockets, things that police can do without a warrant. In a unanimous decision, the Supreme Court scoffed at this notion: Chief Justice John Roberts famously wrote: “That is like saying a ride on horseback is materially indistinguishable from a flight to the moon.”
Adam Schwartz, an EFF attorney representing the plaintiffs, told Ars that they’re hoping the Riley decision could, in effect, negate the border doctrine when it comes to digital devices, because those devices contain so much information.
“The border doctrine does not say that the Constitution doesn’t exist at the border. What it does say is that the balance between privacy and security is drawn differently,” he said.
“What we say is that Riley redraws the equation. Your phone, it’s not like your backpack, it’s like every backpack and every desk and every movie theatre you ever walked into. It’s profoundly different in quality and quantity than what people have historically carried over the border.”
The government has 90 days to formally respond in court.
Jennifer Gabris, a spokeswoman for Customs and Border Protection told Ars that “as a matter of policy” her agency would not answer questions about pending litigation. However, she noted that such searches are rare.
“CBP searches the electronic devices of fewer than one-hundredth of one percent of all arriving international travelers,” she wrote. “We release statistics in April for the first six months of 2017.”
Editor’s note: The original headline was tweaked to clarify that the artist who had his iPhone searched is suing the feds, not Ars.