STATEMENT OF NEEMA SINGH GULIANI SENIOR LEGISLATIVE COUNSEL WASHINGTON LEGISLATIVE OFFICE AMERICAN CIVIL LIBERTIES UNION For a Hearing on “Examining Warrantless Smartphone Searches at the Border” Before United States Senate Committee on Homeland Security and Governmental Affairs Subcommittee on Federal Spending Oversight and Emergency Management July 11 2018 For further information please contact Neema Singh Guliani Senior Legislative Counsel at nguliani@aclu org Chairman Paul Ranking Member Peters and Members of the Subcommittee Thank you for the opportunity to testify on behalf of the American Civil Liberties Union ACLU 1 and for holding this hearing on “Examining Warrantless Smartphone Searches at the Border ” The ACLU is actively engaged in litigation and advocacy to protect individuals’ rights at the border and in the digital age The government’s efforts to protect the border must comply with the Constitution As the Supreme Court has ruled the Fourth Amendment prohibits unreasonable searches and seizures at the border Nevertheless each year tens of thousands of travelers are subjected to unconstitutional searches and confiscations of their electronic devices at U S ports of entry Journalists attorneys and veterans have had their most intimate information – including private emails photos and text messages – seized and searched without a warrant probable cause or even reasonable suspicion The government’s failure to obtain a warrant prior to device searches invites abusive practices that improperly target individuals based on race religion political beliefs or other impermissible factors The number of unconstitutional border device searches has increased dramatically in recent years Despite the clear difference between searching traveler’s luggage and the contents of their electronic devices U S Customs and Border Protection CBP policy continues to improperly permit officers to search travelers’ cell phones laptops and other electronic devices at the border without a warrant that is based on probable cause In addition the CBP policy fails to make clear that CBP cannot perform device searches for general law enforcement purposes or for vague national security reasons that travelers are under no obligation to disclose their passwords to CBP upon request and cannot be coerced into providing this information and that other agencies must comply with the same standards when conducting searches of electronic devices seized by CBP at the border Congress should press the Department of Homeland Security DHS to remedy the deficiencies in its policies In addition it should pass legislation including the bipartisan Protecting Data at the Border Act sponsored by Senators Rand Paul R-KY and Ron Wyden D-OR that ensures that travelers are not subject to border device searches without a warrant are not obligated to assist in unlocking an electronic device at the border and cannot be unreasonably detained for failing to consent to a device search A The number of border device searches has increased dramatically in recent years Despite their small size smartphones laptops tablets and other electronic devices have “immense storage capacity ” Standard portable electronic devices permit the storage of millions 1 For nearly 100 years the ACLU has been our nation’s guardian of liberty working in courts legislatures and communities to defend and preserve the individual rights and liberties that the Constitution and laws of the United States guarantee everyone in this country With more than a million members activists and supporters the ACLU is a nationwide organization that fights tirelessly in all 50 states Puerto Rico and Washington D C to preserve American democracy and an open government 1 of pages of text thousands of pictures or hundreds of videos – far more information than could historically be stored in a traveler’s luggage 2 At the same time individuals are increasingly reliant on portable electronic devices for day-to-day activities Today virtually every American owns a cell phone 77 percent own a smartphone over half own a tablet and nearly three quarters own a computer of some kind 3 Many individuals are reliant on these devices to obtain health data look for employment manage their banking navigate and communicate with their loved ones 4 Despite the volume and sensitivity of information stored on electronic devices CBP increasingly searches these devices without a probable cause warrant In 2015 CBP searched 8 503 devices at the border5 this number climbed to 19 051 and 30 200 in 2016 and 2017 respectively 6 Device searches appear to be increasing rapidly in part due to technological advances that have enabled DHS to quickly extract sensitive information such as contact lists travel patterns and even deleted call logs 7 No travelers are immune to a possible warrantless device search Lawyers journalists students veterans and others have been ensnared in this unconstitutional practice In some cases device searches appear to have been accompanied by concerning questions regarding individuals’ religious beliefs and political affiliations further raising concerns that they are being employed in a discriminatory manner In one complaint obtained through a Freedom of Information Act request by the Knight Institute an individual describes being questioned regarding their religious activity civic engagement political engagement and charitable contributions during the same encounter in which CBP confiscated documents from her electronic device which included sensitive religious prayer requests 8 Other individuals that have been impacted by warrantless device searches include • Diane Maye Ms Maye is a U S citizen and former Air Force captain who served six years as an officer In June 2017 Ms Maye was traveling from Norway to Miami when she was detained by CBP officers upon arrival She was escorted into a small room where CBP officers seized her smartphone and laptop The CBP officers asked her to unlock her devices Because she had no meaningful choice Ms Maye unlocked both devices and then watched the officers search her laptop while her unlocked phone was seized for 2 Riley v California 134 S Ct 2473 2489 2014 Mobile Fact Sheet PEW RESEARCH CENTER Jan 12 2017 http www pewinternet org fact-sheet mobile 4 Aaron Smith U S Smartphone Use in 2015 PEW RESEARCH CENTER April 1 2015 http www pewinternet org 2015 04 01 us-smartphone-use-in-2015 5 McFadden et al American Citizens US Border Agents Can Search Your Cellphone NBC News Mar 13 2017 https www nbcnews com news us-news american-citizens-u-s-border-agents-can-search-your-cellphone-n732746 6 U S Customs and Border Protection “CBP Releases Updated Border Search for Electronic Device Directive and FY17 Statistics January 5 2018 https www cbp gov newsroom national-media-release cbp-releases-updatedborder-search-electronic-device-directive-and 7 McFadden supra note 5 8 See Knight Foundation FOIA Response Sept 21 2017 https assets documentcloud org documents 4334752 KFAI-FOIA-TRIP-Complaints-Border-Electronics pdf Decell Carrie Warrantless Border Searches The Officer “Searched Through…Intimate Photos of My Wife ” THE KNIGHT FOUNDATION Dec 22 2017 https knightcolumbia org news warrantless-border-searches-officersearched-throughintimate-photos-my-wife 3 2 approximately two hours 9 • Ghassan and Nadia Alasaad Mr and Ms Alasaad are U S citizens residing in Massachusetts In July 2017 they were returning to the U S from a family vacation when their entire family was detained by CBP Upon arrival they were directed to secondary inspection where CBP officers questioned Mr Alasaad and searched through his unlocked phone Concerned Mr Alasaad asked the officers why his family was being detained and searched to which a CBP supervisor responded that he had simply felt like ordering a secondary inspection The CBP officers later requested Ms Alasaad’s cell phone password The couple refused in particular because Ms Alasaad wears a headscarf in public in accordance with her religious beliefs and her cell phone had pictures of her without her headscarf on that she did not want any CBP officers especially male officers to view The CBP officers explained that failure to comply would result in Ms Alasaad’s phone being confiscated Because they had no meaningful choice the Alasaads provided the password 10 • Sidd Bikkannavar Mr Bikkannavar is a U S citizen who works as an engineer at NASA’s Jet Propulsion Laboratory in California In January 2017 Mr Bikkannavar was returning to the United States from a trip to Chile Upon his return CBP officers seized his cell phone and ordered him to disclose the password After initially refusing Mr Bikkannavar was given a form explaining to him the consequences of failing to comply The CBP officer repeated his order to disclose the phone’s password and coerced Mr Bikkannavar into disclosing it The CBP officer wrote down the password and took the phone to another room for about 30 minutes Upon returning the CBP officer informed Mr Bikkannavar that officers had used “algorithms” 11 to search his phone • Jeremy Dupin Mr Dupin is an award-winning journalist and filmmaker who covers news in South America and the Caribbean He is a legal permanent resident of the U S and lives in Massachusetts In December 2016 Mr Dupin was returning home from reporting in Haiti when he was detained by CBP officers at Miami International Airport The officers seized Mr Dupin’s phone and ordered him to disclose his phone’s password Because he had no meaningful choice Mr Dupin provided the password After several hours of being detained and questioned including about his journalism work Mr Dupin was finally released A day later Mr Dupin was detained again by CBP after traveling across the border with his young daughter CBP officers seized and searched the same phone that CBP had searched a day previously and released Mr Dupin after about seven hours of detention 12 • Akram Shibly Mr Shibly is a U S citizen a resident of New York and a professional filmmaker In January 2017 Mr Shibly and his fiancée were detained by CBP officers upon returning to the United States from a film project in Canada Upon arrival a CBP officer 9 Amended Complaint for Injunctive and Declaratory Relief at 30-31 Alasaad v Duke No 17-cv-11730-DJC D Mass filed Sept 13 2017 10 Id at 17-20 11 Id at 22 12 Id at 23-25 3 ordered Mr Shibly to provide the password to his phone After Mr Shibly stated that he did not feel comfortable doing so the officer told Mr Shibly that if he had nothing to hide then he should unlock his phone Because he had no meaningful choice Mr Shibly unlocked his phone and watched the officer take his phone out of sight He was also coerced into disclosing his social media identifiers A few days later Mr Shibly was detained again after returning from a day trip to Canada A CBP officer ordered him to hand over his phone When Mr Shibly declined to do so because officers had searched his phone only days earlier three CBP officers used physical force to seize his phone 13 B The Fourth Amendment requires a warrant based on probable cause to search devices at the border The Supreme Court has made clear that the Fourth Amendment applies to searches at the border and in recent years has also made clear that searches of digital data are highly sensitive and entitled to the full panoply of Fourth Amendment protection—namely a warrant based on probable cause In Riley the court held that the government must obtain a warrant before searching a cell phone seized incident to arrest 14 In its opinion the court highlighted the differences between the information that could be stored on a person versus on a digital device – noting that even basic cell phones could store photographs text messages Internet browsing history and a thousandentry phone book and that smartphones can store a great deal more 15 Thus information obtained from a phone would allow the government to reconstruct “the sum of an individual’s private life ” More recently in the Carpenter decision released this term the Supreme Court held that historical location information is subject to the Fourth Amendment’s warrant requirement 16 Similarly sensitive location information can also be gleaned from searches of electronic devices Riley made clear that traditional exceptions to the Fourth Amendment’s warrant requirement do not automatically extend to searches of digital data Indeed the volume and sensitivity of information that can be obtained from an electronic device distinguishes these searches from the searches of physical luggage that were previously understood to fall under the border search exception to the Fourth Amendment’s warrant requirement Notwithstanding this CBP and ICE’s policies reflect their position that they have “plenary authority to control the entry and exit of persons and property ”17 which they believe allows them to conduct warrantless and even suspicionless border device searches pursuant to 13 Id at 33-35 Riley 134 S Ct at 2495 15 Id at 2489 16 Carpenter v U S No 16-402 2018 WL 3073916 June 22 2018 17 Memorandum in Support of Defendants’ Motion to Dismiss at 1 19 Alasaad v Nielsen No 17-cv-11730-DJC D Mass Dec 15 2017 see also CBP Directive No 3340-049A Border Search of Electronic Devices Jan 4 2018 https www cbp gov sites default files assets documents 2018-Jan CBP-Directive-3340-049A-BorderSearch-of-Electronic-Media-Compliant pdf 14 4 the border search exception This position ignores the immense privacy harms of such searches and numerous developments in Fourth Amendment law Several courts have rejected the government’s claim that the border search exception places no limit on device searches at the border The Fourth Circuit recognized that a forensic search of an electronic device seized at the border requires some level of individualized suspicion but did not reach the question of whether a warrant or probable cause is required 18 In a Fifth Circuit case while the court declined to set a rule a judge expressed strong skepticism that the traditional rationale for warrantless border searches should extend to searches of electronic devices 19 While the Eleventh Circuit has unpersuasively held that warrantless border device searches are permissible a dissenting judge concluded that the Constitution requires a warrant for such searches 20 And even without the benefit of the Supreme Court’s reasoning in Riley an older case from the Ninth Circuit determined that the government had to have reasonable suspicion to conduct a forensic search of a device 21 Some district courts have also rejected government arguments that the Constitution permits suspicionless device searches at the border 22 In rejecting government arguments that warrantless border device searches are constitutional courts have noted that the government’s border search authority is subject to the Fourth Amendment’s requirement of reasonableness and that the volume and sensitivity of information on electronic devices distinguishes these searches from searches of luggage and other physical objects Judges have also emphasized the danger of border device searches being performed for general law enforcement purposes which can evade the Fourth Amendment’s firm restrictions on warrantless searches by police 23 The constitutionality of DHS’s policies and practices in conducting suspicionless border device searches is currently being litigated in a case brought by the ACLU and Electronic Frontier Foundation on behalf of 11 travelers who were subjected to unlawful searches where a judge in the District of Massachusetts recently denied the government’s motion to dismiss and has allowed the plaintiffs to press their claims that such searches are unconstitutional 24 C Current DHS policies permit unconstitutional border device searches and fail to protect travelers’ rights In 2018 following inquiries from members of Congress including Senators Paul and Wyden DHS announced an updated CBP border device search policy 25 While the policy represents a 18 See U S v Kolsuz 890 F 3d 133 4th Cir 2018 See U S v Molina-Isidoro 884 F 3d 287 5th Cir 2018 20 See U S v Vergara 884 F 3d 1309 11th Cir 2018 see also U S v Toussaint 117 F Supp 3d 822 E D La 2015 21 U S v Cotterman 709 F 3d 952 9th Cir 2013 22 See U S v Saboonchi 990 F Supp 2d 536 D Md 2014 U S v Kim 103 F Supp 3d 32 D D C 2015 23 See Kim 103 F Supp 3d at 58 24 See Alasaad v Nielsen No 17-cv-11730-DJC 2018 WL 2170323 D Mass filed May 9 2018 25 CBP Directive No 3340-049A Border Search of Electronic Devices Jan 4 2018 19 5 marginal improvement over prior guidance it still falls short of meeting Fourth Amendment standards Congress should press DHS to amend this guidance to 1 require a warrant for border searches of the contents of an electronic device 2 prohibit searches for general law enforcement purposes and for vague “national security concerns” 3 clarify travelers’ rights not to unlock a device or provide a password and 4 ensure that all agencies abide by the same standards 1 Requiring a warrant for searches CBP’s 2018 guidance permits CBP to conduct “basic searches” – defined as any search that is not an “advanced” search – with no suspicion whatsoever Basic searches can include an officer manually searching any information stored on the device including photos emails or other sensitive information Even for so-called “advanced” searches which involve the use of external equipment to copy review and or analyze the contents of a device the guidance only requires CBP to have reasonable suspicion of unlawful activity in violation of laws enforced or administered by CBP or a vague “national security concern ”26 Searches may be performed offsite and devices may be detained for five days by default and often longer 27 The guidance requires that any search be confined to data stored on a device itself CBP’s new policy fails to provide an appropriate level of protection for device searches What the agency deems a “basic” search in fact could implicate sensitive information regarding an individual’s religious beliefs political affiliations location information communications and more Additionally the increasing sophistication of search functions on devices themselves provides the government the practical ability to quickly filter though this information with extraordinary precision enabling even a so-called “basic search” to inflict the extraordinary privacy harms that the Supreme Court identified in Riley To address this concern DHS should amend its policy to require a warrant based on probable cause for any search involving content on an electronic device 2 Prohibiting searches for general law enforcement purposes and for vague “national security concerns” Current CBP policy fails to prevent border device searches from being used for general law enforcement purposes Specifically the policy fails to prohibit the agency from engaging in searches at the request of other agencies or to assist other agencies for law enforcement purposes In one case CBP purportedly flagged an individual because they were wanted for questioning in a Department of Justice investigation involving a leak of classified information 28 Such searches circumvent Fourth Amendment requirements that apply to https www cbp gov sites default files assets documents 2018-Jan CBP-Directive-3340-049A-Border-Search-ofElectronic-Media-Compliant pdf 26 The guidance provides requires special procedures for the handling and segregation of privileged materials Id at 5 2 27 Id at 5 4 28 See Tecs II Document available at https www aclu org files assets housesettlement TECS%20Lookout%20for%20David%20House pdf Hauss Brian Documents Shed Light on Border 6 domestic law enforcement investigations reflecting a concern that has been raised by federal courts In addition the guidance permits officers to conduct a border search in cases involving a purported “national security concern ” 29 “National security concern” is poorly defined and the policy’s language is vague enough to be interpreted as applying in a variety of situations when an individual poses no threat and is not suspected of having violated any law That language also increases the likelihood of arbitrary and discriminatory application of the policy To address these deficiencies DHS should amend the guidance to eliminate “national security concern” as grounds for engaging in a device search 3 Clarifying travelers’ right not to unlock a device or consent to a search The CBP guidance states that travelers have an obligation to present devices in a manner that allows “inspection ” However this language fails to make clear whether CBP believes that individuals must provide a password or other unlocking assistance at the request of CBP personnel In addition it fails to provide clarity as to whether DHS believes that it can detain or in the case of non-citizens deny entry to individuals for refusing to consent to a search or unlock their electronic devices DHS should update its policy to make clear that travelers are under no obligation to provide a password or otherwise provide a means to unlock their device particularly where they can otherwise demonstrate their admissibility to the United States In addition to prevent travelers from being coerced into providing such assistance the policy should clearly prohibit DHS from unreasonably detaining or denying entry to individuals who refuse to provide such information 4 Adopting agency-wide guidance The CBP policy makes clear that if a device is transferred to another component of DHS for search that component’s policies will apply 30 In practice CBP often hands devices seized at the border to U S Immigration and Customs Enforcement ICE for search and ICE’s current policy on border device searches does not prohibit searches of data stored on the cloud and accessible from the device Unlike CBP ICE continues to maintain a policy issued in 2009 that similar to CBP’s prior policy permits ICE to conduct a border search of an electronic device without any suspicion fails to make clear that any search must be confined to data stored on the device and should not extend to cloud-stored data and permits confiscation of a device for up to 30 days or longer 31 DHS has provided no rationale for why ICE and CBP are governed by different standards To remedy this inconsistency DHS should adopt agency-wide guidance that applies to border Laptop Searches ACLU Sep 9 2013 https www aclu org blog national-security documents-shed-light-borderlaptop-searches 29 No 3340-049A at 5 1 4 30 Id at 5 4 2 31 U S Immigration and Customs Enforcement Directive No 7-6 1 Border Searches of Electronic Devices Aug 18 2009 https www dhs gov xlibrary assets ice_border_search_electronic_devices pdf 7 searches of electronic devices performed by any department component D Congress should pass legislation to ensure that border searches respect travelers’ rights The ACLU continues to actively engage in litigation that challenges the government’s practice of unconstitutionally searching travelers’ electronic devices without a warrant However as court challenges continue DHS officers continue to violate the rights of tens of thousands of travelers every year Congress should pass legislation including the bipartisan Protecting Data at the Border Act sponsored by Senators Paul and Wyden which protects travelers’ rights at the border Such legislation should • Require a warrant for all border searches of the contents of electronic devices • Make clear that travelers are under no obligation to unlock devices or provide device passwords to CBP or other government personnel • Prohibit DHS from unreasonably detaining an individual for failing to consent to a device search or failing to unlock a device and • Ensure appropriate reporting and transparency regarding border device search practices The ACLU thanks you for the opportunity to testify today and commends Senator Paul for his leadership on this important issue We urge Congress to pass legislation that makes clear that travelers do not have to sacrifice their constitutional rights as a condition of international travel In the meantime we also urge members to press DHS to amend its policies to ensure that border device searches comport with the Constitution 8