On September 13, 2017, the American Civil Liberties Union (ACLU), in conjunction with the ACLU of Massachusetts and the Electronic Frontier Foundation announced that they had filed a federal lawsuit against the Department of Homeland Security on behalf of eleven plaintiffs. This lawsuit alleges that warrantless searches of the plaintiffs’ cell phones and computers at the U.S. border were unconstitutional violations of the First and Fourth Amendments. The United States District Court for the District of Massachusetts should rule in favor of the plaintiffs.
The eleven plaintiffs all had their phones or computers searched without a warrant at the U.S. border while trying to re-enter the country. These searches, which the government argues have helped find information about crimes such as terrorism, drug trafficking, and child pornography, began during the George W. Bush presidency. Their frequency increased during Barack Obama’s administration, and has significantly jumped during Donald Trump’s time in office. From October 2016 to March 2017, there were nearly 15,000 searches, almost double the amount from the same time period one year prior.
Alasaad v. Duke ultimately deals with the limits of the Fourth Amendment’s guarantee against unreasonable searches and seizures and the need for probable cause to secure a warrant. Courts have consistently ruled that customs officials have wide breadth in enforcing the law due to their inherent interests in protecting the border and preventing the spread of contraband.
However, the United States Supreme Court unanimously ruled in 2014 in Riley v. California that the police must obtain a warrant to search a cell phone due to the immense amount of personal data that is stored on these devices. With this ruling, the court did grant the government the ability to execute a warrantless search of a device with an imminent emergency.
In the case of Alasaad, though, there is clearly no immediate emergency that would require the federal government to invade one’s privacy. In a USA Today op-ed, the acting general counsel for the Department of Homeland Security, Joseph Maher, laid out his legal rationale for the preservation of this intrusive policy. He cited the 2004 Supreme Court ruling in United States v. Flores-Montano, a case where U.S. Customs inspectors, without a warrant, searched a man’s gas tank and found marijuana. In this case, the Supreme Court unanimously ruled that a search of gas tank without a warrant was not an invasion of privacy and upheld the conviction of the defendant, Manuel Flores-Montano.
Maher additionally wrote that since the Court ruled that this sort of search was acceptable under the guise of protecting against contraband, a search of an electronic device is no different. This is incorrect - phones are clearly much more of a private item than a gas tank. People do not keep photos in their gas tank nor do they keep important and personal information like credit card, bank account, and social security numbers in their gas tank.
The Court must take this into account when they consider Alasaad. Another case that is quite relevant for the Court to consider is one before the court in 2000, Bond v. United States.
This case, which dealt with the question of whether a law enforcement agent could physically manipulate the luggage of a bus passenger while checking immigration status, showed that law enforcement officers need to have a warrant to search a personal item like luggage. Chief Justice Rehnquist wrote in the majority that Bond “possessed a privacy interest in his bag” and that “physically invasive inspection is simply more intrusive than purely visual inspection.”
Without a doubt, just as with the gas tank from Flores-Montano, there is significantly more personal information in one’s phone than in luggage. People keep their closest secrets and maintain dear personal memories on their cell phones. If one cannot search luggage without a warrant, why would one be able to search a phone?
Of course, it is easier for law enforcement to rifle through one’s cell phone indiscriminately without a warrant than to go through the tiresome process of following the Constitution and obtaining a warrant after probable cause has been established. Yet, these burdensome requirements are at the center of our system of law and order. Our law enforcement must not cut corners.
A seemingly simple solution would be for Congress to establish a fast-tracked hearing process at locations where many of these searches are happening. If law enforcement desires to search an individual’s telephone or electronic device and the individual denies their request, then the law enforcement officers would speak with special judges to prove probable cause to obtain a search warrant. Once this search warrant has been granted, law enforcement would be given the right to search the contents of the device under the limits set by the warrant.
While this is slightly more onerous for law enforcement, setting up a system to ensure the protection of Americans’ Fourth Amendment rights against unreasonable search and seizure is needed.