ACLU/EFF Files Suit Over Warrantless Device Searches at Airports and the Border

The Associated Press reported that the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF) filed suit against the U.S. Government over the scope of searches of electronic devices at airports and border crossings [PDF version].¹

The lawsuit asserts that the number of warrantless searches of cellphones and laptops at airports and border crossings has quadrupled since 2015. Government statistics indicate that there were 33,295 such searches in fiscal year 2018. The agencies primarily responsible for the searches are the U.S. Customs and Border Protection (CBP) and the U.S. Immigration and Customs Enforcement (ICE).

The report states that the Government's newly filed documents indicate that the searches have “expanded to assist in enforcement of tax, bankruptcy, environmental and consumer protection laws, gather intelligence and advance criminal investigations.” The ACLU and EFF argue in their suit that the documents show that the searches are unconstitutionally overbroad under the Fourth Amendment. The Department of Homeland Security (DHS) notes in response in its court filings that no court has yet found warrantless searches of devices at the border to be unconstitutional.

The ACLU and EFF also argue in their suit that the DHS components responsible for the searches retain the information for long periods of time and share it with other Government entities involved with law enforcement.

The extent to which the Fourth Amendment applies to searches of electronic devices at the border, if at all, remains a subject of litigation. The suit also brings up other pressing issues such as the retention of such information seized in searches and the DHS's sharing the information with other law enforcement entities.

These issues reach U.S. citizens traveling across the border as well as non-citizens. For this reason, we will follow this and similar litigation as it develops. Travelers who have concerns about specific searches should consult with an experienced attorney in the applicable area of law for case-specific guidance on how to protect their rights and interests under law.

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1. Riechmann, Deb. “US searches of phones, laptops at airports rising, suit says.” Associated Press. Apr. 30, 2019. https://apnews.com/9cab32c02ca4474ea80fa88e16ba7967