Border agents searched the electronic devices of 30,200 travelers last year, up more than 11,000 from the previous year. In complaints newly obtained by the Knight First Amendment Institute, many of those travelers pushed back. The complaints—submitted to the hopefully named “Compliments and Complaints Branch” of U.S. Customs and Border Protection (CBP)—mirror traveler-redress complaints obtained last year by the Knight Institute and published in December by the New York Times. The new set of complaints underscores the intrusiveness of electronic device searches and the discrimination and harassment travelers often suffer in connection with those searches. They also document travelers’ insistence that these searches, conducted without cause, violated their rights—to which CBP effectively responded: You have no rights at the border.
Dating to the beginning of 2017, the complaints describe how travelers “felt that their privacy was invaded” when border agents asked for the passwords to their cell phones.
• One traveler found the search of his cell phone “uncalled for and very upsetting,” explaining that his phone contained “my personal pictures, my company’s e-mails and my own e-mails,” and that he was “simply not comfortable on what [the agent] did in there with it.”
• A U.S. citizen wrote that he and his wife “felt violated” when a border agent insisted on looking through their photographs, including “pictures . . . of me and wife,” and refused their request that a woman conduct the search instead.
The CBP complaints further captured travelers’ stories of unfounded accusations and apparent racial discrimination.
• A Swiss citizen “was accused of being a drug smuggler, illegal immigrant, living and working in the United States without permission and even prostitution (!!!).” Having been asked “many very personal questions including whether I had lovers (I quote!) in the U.S.,” the traveler wondered “how is my romantic life any of your business as long as it doesn’t involve marriage in the U.S. or anything of the like?!”
• A German citizen and Canadian resident complained that a border agent searched his phone and, based on an old picture referencing a legal drug, accused him of entering the United States intending to buy illegal drugs. The agent denied him entry and “even told me that he could arrest me but once again without any evidence. Either he watches too much movies or just because I’m black he made that conclusion without any evidence. This is a racial profiling . . . . I have a clean record and never had any problem with the law.”
Like many of the traveler-redress complaints submitted over recent years, the CBP complaints also describe lengthy and uncomfortable detentions during border searches:
• An elderly Canadian couple of Chinese origin, traveling by bus across the U.S.–Canada border, was stopped and detained “from 1:00 am until 7:00 am” while “every belonging was searched, pictures were taken, finger prints were scanned and our cell phones were taken away.” The couple “insisted on a reason” but border agents “refused to explain, written or oral. . . . We were exhausted with great confusion.”
• A woman from Egypt, who was pregnant, reported: “They detained me in a room until the following day (about 21 hours) and didn’t allow me to make a call to my husband or my consulate or a lawyer although I repeatedly asked for this. They checked me and forced me to take off my cardigan and my hijab although I explained to them that I wear it for religious purposes but they said I cannot wear it in the detention room. . . . I was jet lagged, so tired and was out of focus. I was not even able to read through the report they made and they asked me to sign. . . . Then I had to sign it when they told me we are not letting you make any calls until you sign it and that if you don’t sign you will be banned from entering the US for five years.”
These complaints thus suggest that border agents continue to wield their broad search authority to invade the most private and sensitive content stored on travelers’ cell phones and laptops, and to subject travelers to discrimination, harassment, and humiliation during extended searches. They further suggest, however, that travelers are pushing back, demanding recognition of their right against intrusive searches of their electronic devices without cause.
• A U.S. citizen traveling with his wife asked “when did it become ok for customs to violate U.S. citizens’ rights and go through our personal cellphone and look at our pictures and write down our IMEI number on phone?” They “wanted to know how all this is legal and right to have been done.” Threatened with arrest for “talking” and thereby “interfering with the investigation,” they further understood that “we don’t have freedom of speech in USA either.”
• Another U.S. citizen’s “main concern” with the search of his phone was “the information in the phone like contacts, phone numbers, family pictures, emails, texts messages and so on. What does CBP do with this information? Does CBP catalog all my contents of my phone? Does CBP start tracking my family and Co workers from these information gathering practices? Can CBP provide me with its policy on this practice of cell phone content searches and what it does with the information it gathers? I looked up this exact issue on line and it looks like CBP is making it a common practice to search thru people’s phones. . . . It feels like a violation of the 4th amendment at this point.”
• Another U.S. citizen felt “like they violated our constitutional rights by invading our privacy, . . . trying to access our phones without our consent, . . . and treating us unfairly to the point where we felt dehumanized because of the way they talked to us.” When the traveler informed a shift supervisor that he was “going to complain or even . . . hire a lawyer to defend my rights his response . . . was ‘I don’t care if you waste your money, nothing is going to happen anyways.’”
This shift supervisor’s response captures the spirit, if not the precise language, of CBP’s official response to travelers’ claims that their rights have been violated at the border. When traveler complaints included contact information, CBP responded with stock explanations, such as:
CBP’s claim that Supreme Court precedent authorizes their suspicionless searches of electronic devices is wrong. The Supreme Court has never considered whether these searches are constitutional. In its first crack at analyzing the constitutionality of border searches, the Court indicated that while customs officials could empty the contents of an envelope to search for drugs, they might need to obtain a warrant before reading any correspondence within that envelope. Much more recently, the Court observed that cell phones can now store “every piece of mail [owners] have received for the past several months,” in addition to “every picture they have taken, [and] every book or article they have read.” [Riley at 2489]. Cell phones and other electronic devices are modern-day equivalents of warehouses full of envelopes, each stuffed with its owner’s personal correspondence, private musings, and various membership cards. The Constitution does not permit border agents unfettered access to the contents of these digital envelopes today any more than it gave them unfettered access to the contents of their analog equivalents many decades ago.