by Mark Albert
(TVR) – The American Civil Liberties Union, along with several other organizations, are suing the Department of Homeland Security on behalf of 10 American citizens, seeking to block the warrantless searches of travelers’ electronic devices at the U.S. border that have skyrocketed in number in the past several years.
The lawsuit, filed this month in U.S. District Court in Massachusetts, lists plaintiffs identified as students, a military veteran, journalists, an engineer at NASA, a small business owner, and an artist.
Several of the plaintiffs are people of color and Muslims, the ACLU noted in its announcement, including a college professor and retired U.S. Air Force officer Diane Maye.
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“I felt humiliated and violated,” recalled Maye, who says she was detained for two hours upon arrival at Miami International Airport (MIA) this summer.
“I worried that border officers would read my email messages and texts, and look at my photos. This was my life, and a border officer held it in the palm of his hand. I joined this lawsuit because I strongly believe the government shouldn’t have the unfettered power to invade your privacy,” Maye said in a statement.
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Since 2015, the number of warrantless border searches of electronics devices, including laptops and cell phones, has skyrocketed.
According to numbers cited by the ACLU, CBP officers conducted 8,503 such searches in fiscal year 2015. The following year, in 2016, the searches increased by 123% to a total of 19,033.
In the first half of fiscal year 2017, officers had already conducted nearly all of the 2016 total, with nearly 15,000 searches so far, putting it on pace for 30,000 for the full fiscal year, which ends Sept. 30.
“It’s high time that the courts require the government to stop treating the border as a place where they can end-run the Constitution,” said Sophia Cope, a staff attorney at the Electronic Frontier Foundation, which joined the suit by the national ACLU, along with the ACLU of Massachusetts.
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“The government cannot use the border as a dragnet to search through our private data,” ACLU attorney Esha Bhandari declared in the organization’s release.
“Our electronic devices contain massive amounts of information that can paint a detailed picture of our personal lives, including emails, texts, contact lists, photos, work documents, and medical or financial records. The Fourth Amendment requires that the government get a warrant before it can search the contents of smartphones and laptops at the border.”
However, courts have long upheld the authority of Customs and Border Protection (CBP), a part of DHS, to search a traveler’s belongings without a warrant at U.S. ports of entry, whether by air, land, or sea, and within 100 miles of those border checkpoints.
In a letter to the Center for Democracy and Technology in June, Michael Dougherty, Assistant Secretary for Border, Immigration, and Trade Office of Policy, wrote that “CBP is committed to ensuring the rights of all people, while taking the lawful actions necessary to secure our borders.”
Dougherty continued by saying, “All items entering the country are subject to inspection and CBP may seek the traveler’s assistance in presenting his or her effects – including electronic devices – in a condition that allows inspection of the item and its contents. This inspection may include searching computers, disks, drives, tapes, mobile phones, and other communication devices, cameras, music and other media players, and any other electronic or digital devices.”
The two-page reply also warns what happens when a traveler does not comply with CBP’s search request.
“In instances where an electronic device, or portions of the content on the device, are locked or password-protected or otherwise not readily available for inspection, CBP may take lawful measures, as appropriate, to inspect the device and its consistent with longstanding authority to perform border searches.”
CBP says it examined the electronic devices of “less than one-hundredth of one percent” of travelers who entered the U.S. in fiscal year 2016, although that percentage is expected to rise in fiscal year 2017, which concludes Sept. 30.
An investigation by NBC found the devices of U.S. citizens are also being searched. The network found of the individuals singled out for inspection of electronics that it examined, 92% were Muslim.
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