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US Customs sued for information about border phone searches

Would you mind telling me what you're doing with my phone?

By Kieren McCarthy, 28 Mar 2017

US Customs and Homeland Security are being sued to get them to hand over the rules by which people have their electronic devices seized and searched at the border.

The lawsuit [PDF], brought in Washington, DC, by the Knight First Amendment Institute at Columbia University, claims that the US government failed to respond to a freedom of information request for fast handover of the relevant documents.

In particular, the institute seeks "disclosure of records concerning suspicionless searches of individuals' electronic devices at the nation's borders," and argues that their release is necessary "for the public to fully understand the government's policies and practices relating to searches of electronic devices at the border."

It wants the stats, policies and assessments that have gone into recent searches of people's phones and laptops – something that it notes has rocketed since the Trump administration took office.

There are no figures publicly available that say how often border agents have used their extraordinary power to seize electronic devices. However, there has been a wave of recent complaints from US citizens, permanent residents, and visa holders that they've been pulled aside when trying to get into the country and had their electronic devices taken from them and/or have been ordered to unlock them.

In many cases, those individuals have not been informed about why they were viewed as being sufficiently suspicious to warrant having their possessions taken away; neither have they been told what was done with their devices, or if their data was copied or stored.

"The indiscriminate search of Americans' electronic devices at the border raises serious constitutional questions under both the First and Fourth Amendments," the institute argues. "People today store their most intimate information on their electronic devices, reflecting their thoughts, explorations, activities, and associations. Subjecting that information to unfettered government scrutiny invades the core of individual privacy and threatens free inquiry and expression."

The institute has asked for seven groups of documents:

  • Homeland Security (DHS) records (in its TECS database) covering the number of and reasons for each search, detention, retention, or sharing of individuals' electronic devices.
  • Customs and Border documents for the same.
  • Documents that outline the policies Customs and DHS use concerning border searches of electronic devices.
  • Specific policies and practices covering electronic device searches.
  • Complaints filed by people who have had their devices searches.
  • Documents covering the policies and procedures border agents use to handle "privileged or other sensitive materials" – including journalists.
  • Antidiscrimination policies as applied to electronic device searches.

It argues that there is a "compelling need" for the information to be made available quickly since "the public has been denied the information necessary to fully understand the government's searches of electronic devices at the border. These records are urgently needed to inform the ongoing debate over the wisdom and lawfulness of those searches." ®

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