EFF files court brief urging warrants for digital device searches at borders

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The EFF has filed a court filing pressing for warrants be required for searches of mobile phones, laptops and other digital devices by federal agents at international airports and U.S. land borders — describing these as “highly intrusive forays into travelers’ private information”.

It’s urging that searches of digital devices should only be possible when a border agent has obtained a signed warrant from a judge.

Such searches are currently allowed under an exception to the Fourth Amendment for routine immigration and customs enforcement. However, the EFF says digital device searches at the U.S. border have more than doubled since the inauguration of President Trump.

It also points out that increasing numbers of people carry such devices when traveling — arguing both factors highlight the need for stronger privacy rights while crossing the U.S. border.

In July, the U.S. Customs and Border Protection agency also clarified that its policy allowing warrantless border searches is restricted to locally stored data — meaning cloud services cannot be legally searched without a warrant.

However the average device owner still likely holds a lot of data on their devices, from documents, to offline email to smartphone photos and videos.

“Our cell phones 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 suitcases,” said EFF staff attorney Sophia Cope, in a statement.

“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.”

In addition, the filing makes the point that it can be difficult for border agents to distinguish between data held in the cloud and data stored locally on a device — noting how cloud data can “appear as a seamless part of the digital device when presented at the border”.

The EFF has filed the brief with the U.S. Court of Appeals for the Fifth Circuit in U.S. v. Molina-Isidoro. In that case the defendant, Maria Isabel Molina-Isidoro’s, cell phone was manually searched at the border, and data from the search was used to support a prosecution for attempting to import methamphetamine into the country.

In the filing, the EFF notes that border agents opened the defendant’s Uber and WhatsApp apps when they searched her device — implying that cloud data may have been accessed as part of the search. “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,” the filing states.

The document also refers to the Supreme Court holding that police require a warrant to search the content of a phone seized during an arrest — with the EFF arguing the same principle should apply to the digital devices seized at the border.

“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 adds.

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