Personal Data Stored on Smartphones Implicated in Case about Searches by Customs and Border Enforcement

By Andrew Neiman

On January 4, 2017, Isma’il Kushkush arrived at Dulles International Airport in Washington D.C. after working with the Associated Press in Israel. He carried a locked laptop computer and a locked smartphone, which he used personally and professionally as a journalist. After arriving at DIA, Kushkush was directed to “secondary inspection,” where he was ordered to furnish and unlock his devices—and provide social media and email identifiers. While one Customs and Border Protection (“CBP”) officer manually searched the smartphone, another searched the laptop using forensic methods, which often involve copying data on the device. CBP officers never obtained a warrant authorizing these searches.

In recent years, searching digital devices has become a prolific practice by CBP and Immigration and Customs Enforcement (“ICE”).  A recent CBP press release reported that 8,503 international travelers had their devices searched in 2015. In 2016, this number increased to 19,033 people. These numbers are projected to increase substantially in 2017. In the first half this fiscal year, 14,993 digital device searches were performed, meaning that CBP and ICE are on track to conduct 30,000 searches in 2017.

As a result of Kushkush’s experiences—and others like his, the ACLU filed a complaint in federal court against the U.S Department of Homeland Security challenging these practices as violating the Fourth Amendment rights of individuals to keep the private details of their lives free from unwarranted search and seizure (Alasaad v. Duke). Kushkush is among the eleven plaintiffs in the lawsuit. In particular, the ACLU has argued that these searches have occurred in a coercive environment where people have been afraid to resist. The plaintiffs reported that officers threatened to confiscate the device unless passwords were disclosed, and they expressed concern about missing connecting flights while being detained for hours.

Moreover, CBP officers may search digital devices belonging to certain racial, ethnic, and religious groups in greater numbers than those belonging to other groups. Specifically, Muslim travelers have reported anxiety and inconvenience after being more frequently subjected to secondary screenings. Some of the plaintiffs in Alasaad had personal and professional ties to the Middle East. So far, the government has withheld information regarding the numbers of Middle Eastern people undergoing device searches; First Amendment lawyers at Columbia University recently filed a lawsuit against the government after it failed to adequately respond to a FOIA request seeking, among other things a breakdown of digital device seizures by race, ethnicity, nationality and citizenship status. If these policies disparately impact Middle Eastern people, they may be unconstitutional under the Equal Protection Clause of the Fourteenth Amendment.

The lawsuit occurs amidst a national discussion about whether the government has the authority to conduct unwarranted digital device searches. For instance, last month twelve companies, including Apple, Facebook, Twitter, Snapchat, Google, and Verizon submitted an amicus brief to the Supreme Court urging the Court to impose obstacles before the government may access information stored on digital devices.

While the Department of Homeland Security has declined to comment on the litigation, the agency’s general counsel, Joseph Maher, defended the practice in a USA Today opinion as “critical to our mission” and as “hav[ing] produced information used to combat terrorism, violations of export controls, and convictions for child pornography, intellectual property rights violations and visa fraud.” He added that “[n]o court has concluded that such searches require a warrant”—and that the Supreme Court has held the “government’s interest… is at its zenith at the international border.” However, he cites United States v. Flores-Montano, which involved the unwarranted search of a car. Because Flores-Montano was decided in 2004, when smartphone use was at its inception (Apple released the first iPhone in 2007) it is unclear whether it will control here.

Although the Supreme Court has not yet decided whether the government may conduct unwarranted digital device searches in the border-enforcement context, the Court has addressed this issue in the context of state law enforcement. In Riley v. California, the Court held that under the fourth amendment, “police must [get a warrant] before searching a cell phone seized incident to an arrest.” Noting the immense storage capacity of cell phones, which enables people to “carry a cache of sensitive personal information,” the Court reasoned that “allowing the police to scrutinize [smartphone] records on a routine basis is quite different from allowing them to search a personal item… in the occasional case.”

In predicting how District Court will hold on these issues, Riley should control, because the Court took into account the new technologies implicated in the Alasaad complaint, but an appeal is easily conceivable. Thus, at least for now, travelers’ rights to protect intimate data may be in danger.

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