A federal appeals court in the United States has ruled that U.S. border agents don’t need warrants to search travellers’ digital devices, including U.S. citizens and Canadians.
The court ruled against 11 travellers who faced warrantless device searches at the border and had argued that it was unconstitutional.
Reuters reports that the practice of searching travellers’ smartphones and laptops at ports of entry grew amid the Trump administration. Searches grew from 30,200 in 2017 to 40,913 in 2019.
The American Civil Liberties Union (ACLU) and Electronic Frontier Foundation sued on behalf of the travellers and argued that the practice violated the U.S. Constitution’s protection against unreasonable searches and seizures.
Circuit Judge Sandra Lynch disagreed and stated that “electronic device searches do not fit neatly into other categories of property searches, but the bottom line is that basic border searches of electronic devices do not involve an intrusive search of a person.”
Lynch outlined that basic border searches don’t need to be supported by reasonable suspicion and that the requirements of warrants would “hamstring” border agents.
However, she noted that this ruling does not prevent laws from being created to provide greater protection. Lynch stated that U.S. Congress is better suited to identify the harms at the border.
The ACLU has expressed concern regarding the outcome and says it is evaluating all options to ensure that travellers don’t lose their rights to privacy.
In 2017, Privacy Commissioner Daniel Therrien said in a House of Commons meeting that Canadians should be concerned about their digital devices getting searched at the U.S. border. When asked by an MP if this meant that Canadians should only cross the border if they’re comfortable with their devices being searched, Therrien said yes.
Image credit: U.S. Customs and Border Protection