Feds Defend Searching Phones At Border Without Warrants

Attorneys for the U.S. Department of Justice defended its border-search practices – including those involving cellphones – this week at a Boston court hearing where the federal government clashed with the American Civil Liberties Union over a centuries-old question of what personal belongings law enforcement officers can inspect without a warrant at the nation’s borders.

Courts weighing the interests of national security and personal privacy have long held that border agents need only probable cause to search belongings and reasonable suspicion to conduct bodily searches, the DOJ argued. The department has asked to dismiss the federal lawsuit from 11 people who contend their First and Fourth Amendment rights were violated by impromptu phone searches and seizures.

DOJ counsel Michael Drezner said there has never been a requirement for warrants at the border, “and that’s exactly what plaintiffs are arguing for here.”

“It makes just as much sense to search a suitcase as it does a cellphone at the border because both can be used to transport contraband across the border,” Drezner said.

“Contraband like what?” U.S. District Judge Denise J. Casper asked.

“Child pornography has often been found in electronic devices,” Drezner responded.

Esha Bhandari of the ACLU said the port and border exception to searches that would otherwise require court approval dates back to 1789 and has always been strictly limited.

“It’s about the power of the sovereign to keep out people and goods and it’s always been about searches of tangible goods,” Bhandari said.