On September 13, 2017, EFF and ACLU filed a lawsuit against the federal government on behalf of 11 travelers whose smartphones and other electronic devices were searched without a warrant at the U.S. border.
The plaintiffs are 10 U.S. citizens and one lawful permanent resident who come from across the country and a variety of backgrounds. The defendants are the leaders of the Department of Homeland Security and two of its component agencies, Customs & Border Protection (CBP) and Immigration & Customs Enforcement (ICE). The case was filed in U.S. district court in Boston, Massachusetts.
The number of border searches of electronic devices has been steadily growing. According to CBP, border officers conducted 40,913 border searches of electronic devices in fiscal year 2019, which is almost five times the number of searches than in fiscal year 2015 (8,503) and more than double the number of searches in fiscal year 2016 (19,033).
CBP and ICE policies permit border officers to conduct searches of travelers’ electronic devices without a warrant or any individualized suspicion that a traveler has done anything wrong. This case challenges these policies as unconstitutional invasions of the privacy and free speech rights of travelers.
We argue that border searches of electronic devices violate the First and Fourth Amendments to the U.S. Constitution when conducted without a warrant based on probable cause that a device contains data indicating that the traveler has broken an immigration or customs law.
Specifically, we argue that Riley v. California (2014) should apply to the border context. In that case, the U.S. Supreme Court held that given the significant and unprecedented privacy interests people have in their digital data, the police may not conduct warrantless searches of the cell phones of the people they arrest. Following the Court’s analysis in Riley, we argue in this case that electronic devices are nothing like physical luggage—they contain vast amounts of highly personal information. Thus, border officers should first have to obtain a probable cause warrant from a judge before searching travelers cell phones and laptops.
We also challenge the prolonged confiscations—for weeks or months at a time—of travelers’ electronic devices without probable cause.
This case is the first of its kind since Riley v. California was decided.
EFF's 2017 traveler's guide provides advice on how to protect digital privacy when crossing the U.S. border.
Meet our 11 clients:
Suhaib Allababidi, who lives in Texas, owns and operates a business that sells security technology, including to federal government clients.
Sidd Bikkannavar is an optical engineer for NASA’s Jet Propulsion Laboratory living in California.
Jeremy Dupin is a journalist living in Massachusetts.
Aaron Gach is an artist living in California.
Isma’il Kushkush is a journalist living in Virginia.
Diane Maye is a college professor and former captain in the U.S. Air Force living in Florida.
Zainab Merchant, from Florida, is a writer and a graduate student at Harvard University.