Given that Arizona shares its southern border with Mexico, residents need to pay special attention to illegal searches of mobile devices during border crossings. Customs officials are increasingly collecting mobile devices at border crossings and in the nation’s airports, searches that often target minority travelers.
Overall, border searches of electronics more than doubled from 2015 to 2016, and nearly doubled again from 2016 to 2017. A recent Customs and Border Protection directive shifts policy related to border searches of electronic devices, raising additional concern about ongoing border threats to our Fourth Amendment constitutional rights.
Protections are lacking for personal digital identity and life history often stored and accessible via various mobile tools. With the onset of facial-recognition capabilities, everyone is implicated in any mobile device search — not just the owner of a device, but rather all involved in the photos, texts or documents collected and saved.
These others may include protected clients and their data. As the Center for Democracy and Technology notes, there is a “dramatic difference between searches of digital devices and physical items like luggage. … Digital devices carry a quantity and quality of data never before conceived of, and capacity to carry data seems ever-growing due to innovation and the way digital devices access and store information from ‘the cloud.’”
To be sure, we need border security and safeguards against bad actors around the globe. Digital content, too, can reveal illegal or predatory behavior with incriminating material that may have previously been moved across borders on paper or in physical form. There is also a probable cause exception to a warrant requirement at a port of entry if there is targeted suspicion of specific wrongdoing.
Warrantless searches of digital devices without probable cause or narrowly-defined purposes, however, are heinous intrusions on civil liberties. Arizonans need to be on guard as state leaders may get behind warrantless searches and the stomping of civil liberties — actions often stemming from racial profiling — at the border.
For those traveling across the border regularly, the Electronic Frontier Foundation, an advocacy group, offers a set of guidelines for managing personal data and understanding constitutional rights when at the border. With a recent EFF lawsuit filed with the American Civil Liberties Union on behalf of 10 U.S. citizens and one lawful permanent resident whose devices were searched, pressure on the issue of warrantless searches of electronic devices by customs officers continues.
With support from the Don Bennett Moon Foundation and others, the Center for Digital Society and Data Studies will continue to research legal challenges to our civil liberties in the region.
Arizona residents must remain aware, be informed, and vote for future political candidates who care about legal law enforcement efforts and upholding our constitutionally-defined human right to data privacy.