Data privacy is a concern to many preppers, and some even take measures — like traveling with a burner phone or laptop — to prevent border authorities from rummaging through their devices when traveling internationally. In recent years, some have even referred to the US border as a “constitution-free zone” because citizens returning home, such as journalists or tech executives, have had their devices seized and searched without any legitimate cause.
Groups like the ACLU have started to fight back, and a new federal court ruling determined ICE and CBP searches without reasonable suspicion are unconstitutional.
These so-called “suspicionless searches” have dramatically increased in recent years, with 108,000 searches over the five years ending in 2018, 33,000 of which happened in 2018 alone. Not only do they search your devices, they will often download and store all of the contents for future use.
Despite the volume of searches, the ICE was able to cite only 34 published cases where such data was used in a prosecution (out of 108k searches), which includes cases unrelated to national security — leading the court to conclude that these intrusive searches aren’t really keeping us safer.
“This is a great day for travelers who now can cross the international border without fear that the government will, in the absence of any suspicion, ransack the extraordinarily sensitive information we all carry in our electronic devices,” said Sophia Cope, senior staff attorney with the Electronic Frontier Foundation.
So no more worries about having problems at the border because you’re in the wrong Facebook group… at least, for the moment.
USC Law Professor Orin Kerr thinks this ruling is likely to be reversed, as other courts have come to conflicting results that will likely need the Supreme Court to resolve. There’s also unrelated procedural issues. A higher court may find that the plaintiffs don’t have standing to bring the case, for example.
First, I'm skeptical that there is standing. The standing test for 4A injunctions is a really tough standard under City of LA v. Lyons. As far as I can tell, the ct doesn't cite Lyons or apply that tough test. I suspect CA1 will, and they may reverse on that procedural ground.
— Orin Kerr (@OrinKerr) November 12, 2019
So while this is a great (and frankly surprising) step in the right direction, people worried about data security should continue to take proper steps when traveling until the issue is finally settled.
