- The Washington Times - Tuesday, November 12, 2019

The government does need to have a reasonable suspicion of illegal activity before it can search or seize Americans’ electronic devices at U.S. ports and border crossings, a federal judge ruled Tuesday, delivering a significant victory to civil liberties advocates.

Homeland Security’s immigration agencies had previously asserted an unfettered right to peek at travelers’ devices, but Judge Denise J. Casper, an Obama appointee, said that violates the Constitution’s privacy protections.

She rejected the government’s insistence that fishing expeditions can turn into good cases, saying there’s a limit to the kinds of contraband that can be stored on phones in the fist place. And even cases Homeland Security touts, such as child pornography, are a stretch, the judge ruled.

“Although governmental interests are paramount at the border, where such non-cursory searches … amount to non-routine searches, they require reasonable suspicion that the devices contain contraband,” she ruled.

Judge Casper said border and customs agents can still do a cursory look at devices, such as turning them on to make sure they work and confirming their ownership, but more extensive looks into the contents require an articulated suspicion of wrongdoing.

Civil liberties groups proclaimed the ruling a substantial victory.

“This is a great day for travelers who now can cross the international border without fear that the government will, in the absence of any suspicion, ransack the extraordinarily sensitive information we all carry in our electronic devices,” said Sophia Cope, a lawyer at the Electronic Frontier Foundation.

Customs and Border Protection, aware of the past criticism, has already stiffened its own policies, requiring supervisor approval to do an invasive search or to hold onto a device for a more intensive look.

But even as it’s increased its rules, CBP is also doing more searches.

Last year it did more than 33,000 device searches at airports, seaports and land crossings. That’s up nearly fourfold over the past three years.

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