A Big Win for Privacy at the Border.
The ACLU and EFF sued over warantless electronic searches—and won.
I’m Scott Nover. Welcome back to Pressing, a newsletter about press freedom. If you haven’t yet subscribed, you can do so here and receive this letter in your inbox every Tuesday morning.
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In a major decision this week, a federal court in Boston ruled that federal agents may not conduct searches of travelers’ electronic devices at the borer, airports, and other points of entry without proper suspicion. Last year, U.S. Customs and Border Patrol (CBP) conducted 33,000 searches.
The suit, brought on by the American Civil Liberties Union (ACLU) and Electronic Frontier Foundation (EFF), was filed in 2017 on behalf of 11 travelers whose electronic devices were searched at the border without warrants. Judge Denise J. Casper’s judgement in Alasaad v. McAleenan, the case in question, affects the CBP as well as U.S. Immigration and Customs Enforcement (ICE), a separate agency under the supervision of the Department of Homeland Security.
In her ruling, Judge Casper wrote that CBP and ICE policies “violate the Fourth Amendment to the extent that the policies do not require reasonable suspicion that the devices contain contraband for both such classes of non-cursory searches and/or seizure of electronic devices; and that the non-cursory searches and/or seizures of Plaintiffs’ electronic devices, without such reasonable suspicion, violated the Fourth Amendment.”
“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,” said EFF attorney Esha Bhandari in a statement.
One of the plaintiffs, Jeremy Dupin, is a journalist and documentary filmmaker who often works abroad in South America and the Caribbean. In December 2016, he was twice detained on his way home from a trip to Haiti—once at Miami International Airport and the second driving across the border the nest day. In both instances he was with his daughter and questioned for hours about his work. “When they demanded that I tell them my phone’s passcode, I believed I could not refuse,” he said. “With my phone unlocked, agents were able to access some of my most sensitive reporting work, including communications with editors about particular projects and photographs taken while on assignment.”
Another plaintiff, Isma’il Kushkush, is also a journalist who has been subjected to warrantees electronic searches on three occasions since 2016.
Such searches, conducted without even the guise of suspicion to shield agents from scrutiny, are an affront to individual privacy rights and, as demonstrated by Dupin and Kushkush, an affront to press freedom.
As I’ve documented numerous times in this newsletter, clashes between border agents and journalists are on the rise. There’s no knowing what information law enforcement was able to extract about these two journalists—information that could be used to survey, target, or discriminate against them in the future. At the bare minimum, the government detained and punished individual citizens and interrogated them about their journalistic work.
The ACLU and EFF won a crucial battle this week. America’s borders are a little safer for its citizens because of this decision.
Thanks for reading Pressing today and always. I’ll see you on Tuesday! Send tips and feedback to sgnover@gmail.com.