The U.S. border has been thrown into the spotlight these last few months, with border agents detaining travelers for hours, demanding travelers unlock devices, and even demanding passwords and social media handles as a prerequisite for certain travelers entering the country. As the U.S. government issues a dizzying array of new rules and regulations, people in the U.S. and abroad are asking: are there meaningful constitutional limits on the ability of border agents to seize and search the data on your electronic devices and in the cloud?
The answer is: Yes. As we’ll explain in a series of posts on the Bill of Rights at the border and discuss in detail in our border search guide, border agents and their activities are not exempt from constitutional scrutiny.
In this first post, we’ll focus on the First Amendment. Click here for Part 2 on the Fourth Amendment or for Part 3 on the Fifth Amendment.
The First Amendment is meant to safeguard five fundamental rights: speech, assembly, religion, press, and petition to the government for redress of grievances. The First Amendment also protects the right to exercise these basic rights anonymously because, as Supreme Court Justice John Paul Stevens wrote:
Anonymity is a shield from the tyranny of the majority. . . . It thus exemplifies the purpose behind the Bill of Rights and of the First Amendment in particular: to protect unpopular individuals from retaliation . . . at the hand of an intolerant society.
But when border agents scrutinize the massive volume of sensitive information in our digital devices or in the cloud, they infringe on First Amendment rights in at least four distinct ways.
Border searches of our digital devices and cloud data thus implicate core free speech rights. Therefore, border agents should at least be required to obtain a warrant supported by probable cause before any such search of our private digital information.
Indeed, the First Amendment requires even more. For example, when police officers demand purchasing records from booksellers (implicating the right to access information anonymously), the First Amendment requires not only probable cause, but a compelling need, the exhaustion of less restrictive investigative methods, and a substantial nexus between the information sought and the investigation. Given that a digital device search is far more invasive upon First Amendment rights than disclosure of what books a person buys at a single bookseller, border agents should be required to do the same.
And the government should take special care with respect to journalists. The Privacy Protection Act prohibits the government from searching or seizing a journalist’s materials without probable cause that the journalist has committed a crime. While the statute exempts border searches for the purpose of enforcing the customs laws, it does not exempt border searches for other purposes, such as a criminal investigation.
Unfortunately, so far, courts have refused to recognize the free speech implications of digital border searches. But we hope and expect that will change as courts are forced to weigh the increasing amount of sensitive information easily accessible on our devices and in the cloud, and the increasing frequency and scope of border searches of this information.
Without First Amendment protections at the border, the threat of self-censorship looms large. Travelers faced with the risk of border agent intrusion into such sensitive data are more prone to self-censorship when expressing themselves, when considering private membership in political groups, or when deciding whether to access certain reading or media material. This is especially true for people who belong to unpopular groups, who espouse unpopular opinions, or who read unpopular books or view unpopular movies.
Likewise, confidential sources that provide invaluable information to the public about government or corporate malfeasance may refrain from whistleblowing if they fear journalists cannot protect their identities during border crossings. This is why EFF is calling for stronger Constitutional protection of your digital information and urging people to contact Congress on this issue today .
The good news is there’s a lot you can do at the border to protect your digital privacy. Take the time to review our pocket guides on Knowing Your Rights and Protecting your Digital Data at the border. And for a deeper dive into these issues, take a look at our Border Search Guide on protecting the data on your devices and in the cloud