Knight First Amendment Institute files freedom of information lawsuit seeking to force DHS to disclose rules that affect both US citizens and non-citizens

This article is more than 3 years old

This article is more than 3 years old

Escalating concerns about US customs officials demanding access to travelers’ cellphones, tablets and laptops have prompted a leading free speech watchdog to take the government to court, to disclose its rules for digital privacy at the border.

The Knight First Amendment Institute at Columbia University filed a freedom of information lawsuit on Monday, seeking to obtain the Department of Homeland Security’s (DHS) rules for “suspicionless” searches of mobile devices from US citizens and non-citizens alike.

The lawsuit seeks internal DHS directives for compelling travelers to surrender their devices; data establishing the frequency with which Customs and Border Patrol (CBP) or Immigration and Customs Enforcement (Ice) officials conduct them; procedures for what CBP and Ice do with the information stored on those devices, particularly when the devices belong to first amendment-protected professionals such as journalists; and any privacy or anti-discrimination assessment DHS has performed to audit its policies.

Concern about the device searches predate the presidency of Donald Trump. DHS issued an updated electronic device search policy in 2009, Barack Obama’s first year in office. It permitted searches “with or without individualized suspicion”.

The searches appear to have intensified toward the end of Obama’s tenure: while DHS conducted fewer than 5,000 searches in 2015, NBC has reported, the number of inspected devices reached 25,000 in 2016.

The Trump administration’s intense focus on border security has intensified the trend. After the White House introduced executive orders cracking down on immigration and foreign travel, particularly among Hispanics and Muslims, DHS conducted 5,000 device searches in February alone.

Trump’s immigration executive orders included language clarifying that foreigners do not enjoy Privacy Act protections, something the George W Bush and Obama administrations applied in spirit to foreign travel, according to a former DHS official.

John Kelly, the DHS secretary, floated in congressional testimony last month a requirement for citizens of the six Muslim-majority nations on Trump’s ban list to turn over their social media passwords.

“We want to get on their social media, with passwords: what do you do, what do you say? If they don’t want to cooperate, then you don’t come in,” Kelly told a House committee on 7 February.

Even US citizens have reported hours-long detentions at the borders and DHS officials demanding their social media passwords and codes to unlock their phones.

“These searches are extremely intrusive and government agents shouldn’t be conducting them without cause,” said Knight Center executive director Jameel Jaffer.



Jaffer is no stranger to suing the US government for information on its most sensitive policies. As an attorney with the American Civil Liberties Union, he spent 15 years after 9/11 litigating for documents on torture, drone strikes, indefinite detention and mass surveillance.

“Putting this kind of unfettered power in the hands of border agents invites abuse and discrimination and will inevitably have a chilling effect on the freedoms of speech and association,” he said.

On 20 February, the privacy-minded senator Ron Wyden, an Oregon Democrat, wrote to Kelly warning that the aggressive border searches represented an end-run around judicial warrants, subpoenas and other obstacles to overly intrusive inspections.

“By requesting a traveler’s credentials and then directly accessing their data, CBP would be short-circuiting the vital checks and balances that exist in our current system,” Wyden wrote.



A spokesman for CBP, Jennifer Evanitsky, said CBP searches of electronic devices affect “less than one hundredth of one percent of travellers”. She also acknowledged a recent increase in such searches, even though she indicated that CBP, after discovering an “anomaly” in its databases, would be revising data on the searches that it provided to reporters.

“CBP data reflects a year over year increase in electronic media searches of travelers upon arrival to the United States,” Evanitsky said, without providing specifics. “This increase is driven by our mission to protect the American people and enforce the nation’s laws in this digital age.

“CBP’s searches of electronic devices is based on policy that ensures a disciplined, deliberate and lawful approach, which affects less than one hundredth of 1% of travelers upon arrival in the US.”