US border search of suspicionless travelers' devices is unconstitutional, court finds
ICE and CBP will now need reasonable suspicion to search through phones and laptops.
Corinne ReichertSenior Editor
Corinne Reichert (she/her) grew up in Sydney, Australia and moved to California in 2019. She holds degrees in law and communications, and currently writes news, analysis and features for CNET across the topics of electric vehicles, broadband networks, mobile devices, big tech, artificial intelligence, home technology and entertainment. In her spare time, she watches soccer games and F1 races, and goes to Disneyland as often as possible.
I've been covering technology and mobile for 12 years, first as a telecommunications reporter and assistant editor at ZDNet in Australia, then as CNET's West Coast head of breaking news, and now in the Thought Leadership team.
US border agents have had free rein to search through your digital devices, and they conducted more than 33,000 device searches in 2018 and 30,200 searches in 2017. The EFF filed a suit in September 2017 alongside the American Civil Liberties Union against the Department of Homeland Security agencies Customs and Border Protection and Immigration and Customs Enforcement on behalf of 11 people who allegedly had their phones and other devices searched without warrant at a US border.
"The court declares that the CBP and ICE policies for 'basic' and 'advanced' searches, as presently defined, violate the Fourth Amendment to the extent that the policies do not require reasonable suspicion that the devices contain contraband," says the judgment, delivered in the United States District Court of Massachusetts.
With the ruling, reasonable suspicion is now required for both basic and advanced searches of electronic devices.
The ruling extends Fourth Amendment
protection to "millions of international travelers who enter the United States every year," said Esha Bhandari, an attorney for the ACLU's Speech, Privacy and Technology Project. "By putting an end to the government's ability to conduct suspicionless fishing expeditions, the court reaffirms that the border is not a lawless place and that we don't lose our privacy rights when we travel."
Sophia Cope, EFF senior staff attorney, added that international travelers can now cross US borders without fear that the government will "ransack the extraordinarily sensitive information we all carry in our electronic devices."
However, the court stopped short of ordering that the information taken from the digital devices be expunged.
CBP didn't immediately respond to a request for comment.