These are some of the many American citizens re-entering the country who have been subjected to searches of their cellphones and questioning about their social media.
Such invasions of travelers’ private communications are extremely intrusive and have been conducted even when officials don’t apparently have reason to think the person has done something wrong. And the government has lately increased the practice dramatically — even though recent legal decisions raise serious questions about its constitutionality.
Because people keep ever more of their personal details on their phones and computers, it is particularly egregious that the government should claim some right to unfettered access to these devices simply because a person travels abroad.
On Monday, the Knight First Amendment Institute at Columbia University — whose mission is to defend free speech in the digital age — filed a lawsuit seeking to compel the government to release information on the number of travelers whose devices have been searched, the policies related to searching cellphones containing sensitive and confidential information, and the findings of internal audits about the device search program.
The court held that police generally can’t seize a person’s cellphone as part of an arrest without first obtaining a warrant that is backed by evidence that the cellphone contains evidence of a crime and is signed by a judge.
A cellphone contains “the sum of an individual’s private life,” Chief Justice John Roberts wrote for the court. The search of a smartphone is nothing like the search of a duffle bag. What people store on their cellphones — including Internet browsing history, medical records, family photos, GPS location data, financial information, and apps related to dating, addiction and hobbies — is vastly more sensitive than what people used to carry in their pockets, backpacks, or purses, or even keep in their homes.
The implications may be especially significant for a free press. Suspicionless searches of cellphones threaten the ability of journalists and their sources to report on important international issues, which deprives the public of its right to know about those issues.
Those sources will likely be leery of sharing information with journalists and activists if their identities and reports may be revealed to the US government at the border.
Anecdotal evidence about how the government is using its authority to conduct suspicionless electronic device searches is disturbing but incomplete. The public has a right to see a fuller picture, as many civil liberties groups have asked the government to provide.
Disclosure of the database — perhaps with narrow redactions to protect legitimate national security and privacy interests — would help the public understand the answer to basic questions about the government’s program: How often do border officers search travelers’ cellphones and other devices, and for what reasons?
Why did the incidence of cellphone searches sharply increase in the past 15 months? Does the department follow its own rules for taking special measures to protect searches of privileged and other sensitive content stored on cellphones, and what are those rules?
The courts should require the government to disclose this information and quickly, and the practice of delving into travelers’ private lives at the border without reason to suspect them of wrongdoing should ultimately end. Everything we know about the government’s searches of devices at the border suggests the government is dramatically expanding an unconstitutional program.