Border Warrant Exemption for Smartphone Search Under New Challenge in Newly Filed Lawsuit

Posted on December 27, 2018

This week, Ars Technica reported that a new lawsuit has been filed challenging the federal government’s practice of searching without warrants the digital devices of Americans entering or leaving the country. The suit takes aim at the dubious, though judicially upheld, exemption to search warrant requirements in border areas (even as far as 100 miles into U.S. territory from actual borders), including ports of entry such as airports. This exception has traditionally been applied to searches of travelers’ persons or luggage, but has since been cited as justification for federal law enforcement to access data on travelers’ mobile devices.

The newly filed complaint concerns US citizen Haisam Elsharkawi’s detention at LAX, and coercion into unlocking his phone, as he was about to board a flight out of the country to complete the Muslim hajj pilgrimage. After complying with orders from Customs and Border Patrol personnel, Elsharkawi then invoked his right to legal representation, which CBP took as a pretext for ordering Elsharkawi to unlock his phone and detaining him in a holding cell, despite agents’ assurances that he was not being detained. Once in the holding cell, Elsharkawi eventually relented and unlocked his phone for CBP agents.

As CCDBR has previously covered, the number of cases in which smartphones are seized or their owners are forced to unlock them at the border has spiked as of last year. Alarming as this trend already is, the data which substantiates it only encompasses instances of inbound international travelers whose phones have in some way been accessed by CBP. As such, the frequency, both in absolute terms or compared to past years, of outbound travelers being subjected to the same demands is not known.

This recent filing joins the ranks of a number of ongoing suits confronting border area law enforcement’s search powers. The first direct challenge to the federal law enforcement’s self-appointed right to search phones at the border at will came from a September 2017 lawsuit, shortly after the sharp uptick in the use of such authority.

Other lawsuits seek to illuminate the circumstances behind such searches. In March of this year, the ACLU filed suit to obtain internal documents or protocols governing the seizure and/or search of digital devices by the TSA. A subsequent lawsuit filed in August attempts to further test the limits of the border search warrant exemption, as applied to smartphones, arguing that CBP should be required to delete data obtained form such warrantless border searches if it is not later used for any investigatory or prosecutorial purposes, and provide confirmation of such deletion.

These various legal challenges will likely not be resolved for some time, but some privacy-conscious Federal Appellate Court rulings suggest that the data on one’s device may be sensitive enough to override, or at least temper, the border search exception that has long lacked any serious opposition. 

You can read the full story from Ars Technica here