Warrantless Searches of Electronic Devices Continue to Grow — When Will It Stop?
Every month, thousands of travelers entering the United States have their digital devices searched without a warrant or probable cause. Figures from Customs and Border Protection (CBP) show a fivefold increase in electronic media searches at the border from fiscal year 2015 and 2016, and statistics reveal nearly 30,000 passengers will face additional screening in 2017. As those numbers continue to grow, thousands of ordinary American citizens are getting caught up in the government dragnet. Yet, the 4th Amendment of the United States Constitution is designed to protect Americans against search and seizure without a warrant or probable cause, the 1st Amendment protects free speech, and the 5th Amendment protects Americans from self-incrimination — so, how can this happen?

While the U.S. border is not a constitution-free zone, U.S. border agents operate under an exception to the 4th Amendment. This means border agents are legally authorized to search all persons, possessions, and goods entering the United States. Given the millions of people that come through U.S. borders every year, it is reasonable that a sovereign country would desire to protect itself by inspecting persons and goods entering the country. But should those searches extend to our personal digital devices?
It is humiliating and frightening to be stopped at the border. Passengers are most often coming from far off places and have often been traveling for many hours. Most do not have advanced warning that they will be searched. During the interrogation process, passengers cannot use their cell phones, nor can they freely contact people who may be waiting for them outside security. Afterwards, many passengers find that their checked baggage has been misplaced or taken by the airlines. The entire process is degrading and undignified.
I understand this degradation first-hand because it happened to me. The irony of my situation is that not only am I a professor of Security Studies and Homeland Security, but I was born in the United States, served on active duty as an officer, and attended some of the most prestigious military schools in the country. I was stationed in Washington, DC, on 9/11. The bloodcurdling repercussions of that day shaped the rest of my career, sparking a passion for security and counterterrorism which eventually led me to Iraq. My PhD dissertation focused on Iraqi politics and why combatants often choose to switch sides during a conflict. I have spoken to many Iraqis about this issue, as well as their thoughts on loyalty, nationalism, and patronage. My Iraqi affiliations and contacts were enough to raise a red flag at the border, where I was stopped and interrogated for nearly two hours.
I did not have an issue speaking with Customs and Border Protection about my work or my affiliations. I did not have an issue when they pulled me into a back room for a secondary screening and scrutinized my luggage. I did not have an issue that they made me wait in a holding area after a grueling trip across the Atlantic, initially unable to call my spouse or loved ones. I also did not mind that the interrogation was so long that when I was released and went to get my checked baggage, it was not on the carousel, and so I had to wait another hour while the airline tracked it down. However, what I, as an American citizen, did mind was them confiscating my phone, asking me to unlock it, and holding it in another room while they interrogated me about my life’s work and travels abroad.

As I was sitting in the interrogation room, I thought about all the pictures on my phone, my banking apps, my social media, and my email. On the one hand, I did not feel I had anything to hide. My life is an open book; I will answer anything about my work or my contacts. Yet, I worried whether or not the CBP officer had integrity. The questions and fear ran through my mind: Did he look at my bank account? Did he download my pictures? Did he read my messages on social media? My email account has records dating back to 2006. Did he download my emails and skim through the past 11 years of my life? Will my data go to another intelligence agency? Does the CBP agent now have my social security number? CV’s? Medical information? As I reflected upon what happened, I felt disgusted and violated. This was my life — and one CBP officer had it all in the palm of his hand.
As the law stands today, border agents actually hold the authority to conduct such interrogations up to 100 miles inland. This means the population of the entire state of Florida, as well as many major cities in the United States, are privy, by law, to warrantless searches of their phones, computers, and other electronic devices.
In the information age, not only do we keep the intimate details of our private lives on our phones, but also our professional lives. For instance, attorneys often carry information on their cases, and physicians have sensitive medical data on their patients — all on their digital devices. When stopped by CBP, many people are put into a precarious Catch-22 legal situation: share the information and violate the privacy of their clients, or refuse to share the information and suffer the consequences. The searches put a limit on academic and intellectual freedom, as journalists, filmmakers, and artists who have traveled abroad are all subject to these draconian measures.
No one should have to endure this level of degradation by having the intimate details of their lives suddenly available, without cause, for government consumption. This is why organizations such as the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF) have made a call to change the law in order for it to be fairer towards people that are most vulnerable to this sort of persecution. All people — not just American citizens — should have a reasonable expectation of privacy, and it is up to Americans to lead by example and protect this right.

Diane Maye is an Assistant Professor of Security Studies at Embry-Riddle Aeronautical University. She is a graduate of the U.S. Air Force Academy, Naval Postgraduate School, and George Mason University. She is a former U.S. Air Force officer, defense industry professional, and a member of the Truman National Security Project’s Defense Council. Views expressed are her own.
