Dubai - A federal judge ruled Tuesday that border agents can’t search international travelers’ electronic devices without suspecting them of a crime, potentially putting a limit on a growing practice in U.S. ports of entry.
A federal court in Boston ruled that warrantless U.S. government searches of the phones and laptops of international travelers at airports and other U.S. ports of entry violate the Fourth Amendment.
Tuesday’s ruling came in a lawsuit filed by the American Civil Liberties Union and the Electronic Frontier Foundation on behalf of 11 travelers whose smartphones and laptops were searched without individualized suspicion at U.S. ports of entry.
The ACLU describes the searches as “fishing expeditions.”
The government has vigorously defended the searches as a critical tool to protect America.
The number of electronic device searches at U.S. ports of entry has increased significantly, the ACLU said. Last year, the government conducted more than 33,000 searches, almost four times the number from just three years prior.
U.S. District Judge Denise Casper in Boston ruled in a lawsuit by 11 travelers that border officials need to be able to point to specific facts to justify searching someone’s devices for contraband like child pornography and counterfeit media.
That is a higher standard than agents with the U.S. Customs and Border Protection and the U.S. Immigration and Customs Enforcement under their current policies have been required to apply to conduct routine searches of electronic devices.
She said that while officials have a “paramount” interest in protecting the border, the privacy interests of travelers whose troves of personal information could be otherwise searched without cause had to balanced against it.
“This requirement reflects both the important privacy interests involved in searching electronic devices and the Defendant’s governmental interests at the border,” Casper wrote.
The judge said that to the extent CBP and ICE policies allowed for such searches without cause, they violated the U.S. Constitution’s Fourth Amendment protections against unreasonable searches and seizures.
But Casper declined to force agents to have probable cause and secure warrants before searching devices, a higher standard sought by the plaintiffs’ lawyers at the American Civil Liberties Union and Electronic Frontier Foundation.
Esha Bhandari, an attorney with the ACLU, said in a statement that the ruling “significantly advances Fourth Amendment protections for the millions of international travelers who enter the United States every year.”
“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,” Bhandari said.
The CBP had no immediate comment.
The number of electronic device searches at the border has ballooned during Republican President Donald Trump’s administration, rising on a fiscal year basis from about 8,500 in 2015 to more than 30,000 in 2018, according to the ACLU.