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Civil liberties advocates want records on cellphone and laptop searches at U.S. border

An iPhone is seen in Washington in 2016. (AP Photo/Carolyn Kaster)

Civil liberties advocates on Monday pressed homeland security officials for more information about how the government searches the cellphones, laptops and other electronic devices of travelers at U.S. borders.

In a lawsuit filed in federal court in Washington, lawyers with the Knight First Amendment Institute at Columbia University say they are particularly concerned about the Department of Homeland Security’s policies related to searches of devices belonging to attorneys, human rights advocates and journalists.

“The indiscriminate search of Americans’ electronic devices at the border raises serious constitutional questions,” according to the lawsuit filed in U.S. District Court. “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 Freedom of Information Act lawsuit comes as the Trump administration’s revised travel order, blocking the issuance of new visas to citizens of six Muslim-majority countries, faces legal scrutiny. The president has said the new executive order, on hold after rulings from two federal judges, is necessary for national security as the administration reevaluates its vetting procedures for foreign travelers.

Under government policies in place during the Obama administration, U.S. Customs and Border Patrol officials can search travelers’ phones, tablets and computers without “individualized suspicion.”

“The overall authority to conduct border searches without suspicion or warrant is clear and longstanding, and courts have not treated searches of electronic devices any differently than searches of other objects,” according to a homeland security department review of the guidelines by the office on civil liberties in 2013.

Courts have issued conflicting opinions about the standard for conducting such searches, according to Orin Kerr, a George Washington University law professor and director of the Cybersecurity Law Initiative.  In some cases, the government needs “reasonable suspicion,” but in others it does not need to have a reason to suspect that the traveler has done something wrong.

Specifically, the lawsuit filed Monday seeks information about the policies concerning electronic device searches and complaints filed by individuals or organizations about the agency’s review, retention, or sharing of the information stored on travelers’ devices. According to the Knight Institute, the department did not respond to a public records request earlier this month seeking an expedited review.

A homeland security department spokeswoman said the agency does not comment on pending litigation.

A separate criminal case pending at the U.S. Court of Appeals for the 4th Circuit concerns the constitutionality of electronic searches at the border.