August 03, 2018

Warrantless border searches expand as courts grapple with growing legal implications

As the Department of Homeland Security increases warrantless searches of electronic devices at international borders, what should companies be doing to protect their confidential information?

There isn’t much that they can do to prevent the searches because they are legal, and since Congress has not acted to deal with the privacy implications of the ever-changing technology around digital and mobile devices, the courts feel forced to grapple with some of these issues and they are not equipped to do so.

That was the consensus of panelists on the ABA CLE Showcase program, “Can’t Touch This—or Can They? Government Searches, Privacy and Security in a Digital Age,” held on Aug. 3, at the ABA Annual Meeting in Chicago.

The panel of lawyers with experience drawn from the National Security Agency, Department of Justice and other official offices with technology oversight discussed the legal, privacy and constitutional concerns associated with the collection and movement of massive amounts of data now generated by smart-phone usage, the internet of things and other technological developments.

Moderator Paul Rosen, partner at Crowell & Moring and a former Justice Department prosecutor, said border searches is an interesting issue “because the rules are different at the border but technology crossing the border is the same and courts are right now struggling answering this question and businesses are trying to figure out how to protect their information.”

He said several lawsuits have been filed around the country over the warrantless searches of phones and laptops owned by Americans stopped at the border, claiming that the border searches violate Fourth Amendment protections against unreasonable searches and seizures.

Panelist Stephanie Christensen, a prosecutor and deputy chief of cyber and intellectual property crimes within the National Security Division of the U.S. Attorney’s Office in Los Angeles, explained that searches “are not taking place within someone’s home and… the duties of a nation state are to protect its borders. So, since you’re bringing something into the U.S., the border, there should be a right of the United States to conduct searches in order to protect its border.”

Rosen noted that international airports are considered borders. “So essentially you’re flying in or out of an international airport and customs officials have the right to search your phone if they want with little or no reason to do so,” he said.

Christensen said it’s hard to predict how the courts will rule on the cases.

“What you’re seeing is that you’re having courts try and overlay basic principles – a nation state can search a person or items that are coming into the country – then overlaying these privacy concerns on top of that,’’ she explained. “Issues are how much can they search that digital device? Need they have probable suspicion? Or is it just a fundamental border search where CBP [Customs and Border Patrol] can check your entire vehicle, including digital devices as it comes across the border?

“So, in case law you see courts struggling with these questions. Should there be reasonable suspicion? What is the duration? Can they hold your phone for 24 hours? Can they take it off-site to search your laptop? These are questions that the courts are encountering,” she said.

The program was sponsored by the ABA Section of Science & Technology Law. Other panelists were Rajesh De, chair of the cyber security practice at Mayer Brown and former staff secretary at the White House and general counsel at the National Security Agency; Uma Amulum, counsel at Boeing and formerly with the White House counsel’s office; and Jonathan Gannon, assistant vice president, legal department at AT&T and formerly with the Justice Department.