EFF Urges Appeals Court To Toughen Privacy Protections for Devices at the Border

Richmond, Virginia (EFF) —The Electronic Frontier Foundation (EFF) is urging a federal appeals court to rule that government agents need a warrant to search cell phones, computers, and other personal electronic devices at the border.

In an amicus brief filed today in the United States Court of Appeals for the Fourth Circuit, EFF said that digital devices hold the most intimate details of our personal and professional lives—from conversations with friends and coworkers, to our financial information, and photos and videos of our family. This highly sensitive and personal information, stored on the devices themselves or on computer servers located miles away, can be accessed in just a few clicks, putting electronic devices in a totally different category than the suitcases, backpacks or wallets we travel with.

”Anyone coming back into the country from vacation or a business trip can have his or her smartphone, laptop, or tablet seized, and emails, texts, photos, videos, and voicemails rifled through and retained, without a warrant or any suspicion that a crime has been committed,’’ said EFF Staff Attorney Sophia Cope. “This violates Fourth Amendment protections against unreasonable searches and seizures. The Supreme Court recognized last year in Riley v. California that modern digital devices contain unprecedented amounts of highly personal information and ruled that police need a warrant to search devices found on people they arrest.The same standard should apply when border agents want to search devices we carry with us while traveling.’’

EFF is weighing in on the Maryland case of U.S. v. Saboonchi, which involves evidence taken without a warrant from cell phones and a flash drive belonging to an Iranian-American U.S. citizen returning from vacation at Niagara Falls. Law enforcement officials used information found on the devices—which could hold the equivalent of dozens of suitcases worth of documents—to charge him with violating export control laws.

EFF’s brief explains that the Fourth Amendment’s border search exception allows warrantless searches at the U.S. border only for the purposes of enforcing immigration and customs laws. That means agents may check travelers’ passport and immigration documents, and search luggage for physical contraband like drugs or items subject to import duties.

Image Source: Bill Morrow

Image Source: Bill Morrow

”Searches conducted for the purpose of ordinary criminal law enforcement aren’t covered by the border search exception,’’ said EFF Senior Staff Attorney Hanni Fakhoury. “The border search exception is not meant to be a loophole for law enforcement to obtain troves of personal information without a warrant.’’

This report was prepared by EFF.