The EFF Wants US Border Agents to Stop Searching Devices Without a Warrant

By Tom Pritchard on at

If you're travelling to the US, it's been well documented that border agents are allowed to search through your digital devices whenever they feel like it. They don't need a warrant, and they don't need any sort of probable cause. The Electronic Frontier Foundation, probably the best known digital rights group out there, has now urged that this practice be stopped. Instead it wants border agents to have warrant signed by a judge before they do any digital snooping.

Currently there is a loophole in the US Constitution's Fourth Amendment, which normally prohibits search and seizures without a warrant backed up by probable cause. This has been in place since at least 1925, when it was ratified by the US Supreme Court, with the intention of preventing specific items from entering the country. Items including, but not limited to, weapons, drugs, and items that have outstanding duties to be paid.

As the EFF noted back in December, it was rare for people to carry such large amounts of personal information with them. With devices like smartphones and laptops, that's not really the case anymore. Because people carry these devices with them almost all the time, including during border crossings, the EFF wants there to be stronger privacy rights for travellers.

EFF staff attorney Sophia Cope said in a statement:

"Our cell phones [sic] and laptops provide access to an unprecedented amount of detailed, private information, often going back many months or years, from emails to our coworkers to photos of our loved ones and lists of our closest contacts. This is light years beyond the minimal information generally contained in other kinds of personal items we might carry in our suitcase. It’s time for courts and the government to acknowledge that examining the contents of a digital device is highly intrusive, and Fourth Amendment protections should be strong, even at the border."

The brief has been filed with the US Court of Appeals for the Fifth Circuit in U.S. v. Molina-Isidoro. In this particular case defendant Maria Isabel Molina-Isidoro's phone was searched at the border and some of the data obtained is being used to support charges that she attempted to smuggle meth into the US.

The filing also notes that cloud data, which is not subject to the same rules, is difficult to distinguish from locally stored files since it can "appear as a seamless part of the digital device when presented at the border". It claims that border agents had opened the defendant's Uber and WhatsApp apps, implying cloud data may have been accessed during the search, saying "there is no indication that border agents put her phone in airplane mode or otherwise disconnected it from the Internet when they accessed these apps." If true, this would spell trouble for the prosecution.

The EFF's submission also mentions the fact that the US Supreme Court has previously decreed that mobile phones hold "the privacies of life", meaning police and law enforcement agencies need a warrant to search the contents of a device during an arrest. It argues that this same logic should be applied to border searches.

"In sum, portable digital devices differ wildly from luggage and other physical items a person possesses when entering or leaving the country. Now is the time to acknowledge the full force of the privacy implications of border searches of digital devices. As the Supreme Court said, “It would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology."

It's unclear what will happen here, and even if the EFF is successful it's another question as to whether new privacy rights will apply to non-US citizens entering the country. In the meantime, however, if you want to safeguard your data while you're entering the USA, your best bet is to back everything up to the cloud and wipe your devices. [EFF via TechCrunch]

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