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Civil rights groups including the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF) have pushed this week for a US judge to declare the search of mobile phones at America's borders to be unconstitutional.
In a request for summary judgment [PDF] in a case that was launched back in 2017, the organizations have asked Massachusetts federal judge Denise Casper to agree that border agents must first get a warrant before they are allowed to take away someone's electronic device and search it.
Supreme - Court - Decisions - Conclusion - Border
"The Supreme Court's border-related decisions support the conclusion that border searches of electronic devices require a warrant," argues the filing. "At a minimum, border searches of electronic devices require a heightened standard of suspicion that should apply to all such device searches, without distinguishing between methods of search."
The case has been brought by 11 individuals – 10 US citizens and one permanent resident – who represent a diverse group of Americans including journalists, artists, engineers, students, a business owner and a military vet. Several are Muslim; others are people of color. All of them were stopped while entering the United States and had their devices confiscated for weeks or months. None have been accused of any wrongdoing.
Argument - Warrantless - Border - Search - Devices
The argument to declare a warrantless border search of electronic devices follows previous decisions in favor of personal privacy, including Supreme Court decisions in Carpenter over location data, and warrantless mobile searches during an arrest (Riley).
But the US government has been arguing that the US border is a special case and there are national security interests at stake. It has argued that border agents should only need a "reasonable suspicion" to carry out searches. The ACLU argues that the government is using the border as a "pretext" to get around both the First and Fourth Amendments.
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