Government Can’t Search Your Phone or Laptop at the Airport

In a landmark case a Federal Court in Massachusetts has ruled that the government can’t search your cellphone, laptop or other electronic devices at the airport without reasonable suspicion of evidence of a crime is stored on the device.  Up until now, ICE has been routinely searching peoples phones and laptops at the airport without probable cause. 

The Fourth Amendment to the US Constitution requires that the government obtain a warrant based on probable cause before they search something of yours that you have a legitimate expectation privacy. If they don’t have a warrant they can search your person, papers or property if they can show that they have a reasonable suspicion that a crime is taking or has taken place and that there is evidence of the crime in the property searched if they can show an exigent circumstance like destruction of the evidence, harm to the cops or another person or the suspect will escape.

There is also a border exception to the Fourth Amendment probable cause requirement.  The court notes that the government’s interest in securing it’s borders from criminals and contraband is paramount.

The government’s position regarding the border has been that you the traveler don’t have a legitimate expectation of privacy in their phones, et c. when you travel by plane or cross the border. The same way traveler’s don’t have a legitimate expectation of privacy in their persons or suitcases. 

The Plaintiff’s position is your electronically stored information is different. It’s not contraband and it’s not evidence of an immediate crime.

One of the travelers who were plaintiff’s in the action include a Muslim female journalist whose phone was searched on two arrivals from overseas, in the second time the ICE cop noted that some of the information from the first search was no longer on the phone. The second time her daughter’s phone was also searched.

Another traveler was a lawyer whose phone was searched even after she told ICE that there were attorney-client privileged communications on the phone. A third was a computer programmer whose phone was seized by ICE for almost two months.

Finally, an incoming Harvard freshman’s electronics were searched and he was denied entry to the US.

During the course of the investigation of the case it came out that the policy of the Department of Homeland Security allows ICE cops to search electronics for ‘general law enforcement’ purposes (whatever that means) and investigating and enforcing bankruptcy laws. It also came out that their policy allowed their cops to search phones for information about third parties, including family members and foreign individuals or business who may be of interest to the government. Most galling may be learning that DHS policy allows ICE cops to share the information with other government agencies.

Even after the lawsuit, ICE was still searching travelers electronic devices. When one plaintiff refused to divulge his password, ICE seized his phone.

The Court ruled that ICE cops must have a reasonable suspicion as described by specific, articulable facts before they conduct a search of electronic devices at airports or the border. The court compared border searches to searches of cell phones incident to arrest, which the Supreme Court in Riley held required a warrant because of the vast amount of data stored on electronic devices. The court held that because the government’s interest at the border was greater reasonable suspicion would be necessary, not a warrant as in searches incident to an arrest.

A nice win for the people and hopefully a meaningful blow to ICE cops. If you have a search and seizure issue at the airport, border or anywhere else, please call me at 213-893-8640 to discuss.

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