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ACLU Files SCOTUS Petition to Extend Fourth Amendment Privacy Protections for All Travelers at the U.S. Border


The American Civil Liberties Union (ACLU) filed a petition for writ of certiorari with the Supreme Court of the United States on Friday that aims to clarify and extend the protections offered by the Fourth Amendment.

Stylized as Merchant v. Mayorkas, the case essentially says that people don’t lose their privacy rights when they travel–especially not Americans.

In 2017, the storied civil liberties group filed a lawsuit against the Department of Homeland Security (DHS) challenging the use of “warrantless and suspicionless” searches conducted by border agents on travelers’ phones, laptops and other electronic devices.

The national ACLU, along with co-plaintiffs the Electronic Frontier Foundation (EFF) and the ACLU of Massachusetts, won at the district level before the conservative U.S. Court of Appeals for the Fifth Circuit overturned the ruling on appeal earlier this year.

The lead petitioner, Zainab Merchant, is a Muslim woman who wears hijab and who has repeatedly been subject to “prolonged, intrusive border searches,” the group notes.

“One of those incidents occurred in 2017, while she was a graduate student at Harvard University,” a press release notes. “On her way back from a trip to Canada, CBP officers stopped her and demanded she unlock her phone and laptop, threatened to seize the devices if she did not comply, and questioned her about her religion, her travels, and even her blog. The invasive search drove Zainab to tears. She worried that the officers, who were men, would see photos on her phone showing her without her headscarf. When the officers finally gave her phone back, the Facebook app was open and displaying her friends list. It hadn’t been open when she turned over the phone.”

The petition also describes the petitioners in general terms:

Petitioners in this case come from all walks of life. They are the editor of a media organization, the operator of a security technology business, a NASA engineer, a journalist, an artist, a filmmaker, a computer programmer, and a university professor who formerly served as a U.S. Air Force captain. They are U.S. citizens. All were subjected to warrantless searches of their electronic devices at the border. None of the Petitioners have been accused of wrongdoing in connection with these border device searches.

The ACLU claims the stakes of the litigation involve a fundamental question regarding civil liberties as outlined in the U.S. Bill of Rights.

“Resolution of the question presented is a matter of great importance for the millions of travelers whose privacy rights are at stake every time they cross the border, as well as for the border officers who conduct device searches,” the petition argues.

And the group notes, procedurally, that “four different constitutional regimes govern federal border officials in four different circuits,” which arguably makes the issue extremely ripe for consideration by the nine justices.

“Device searches at the border are on the rise,” the petition continues. “And advancing technology increasingly enables individuals to store more personal information on their devices, while empowering government agents to conduct increasingly intrusive searches of those devices. The question presented [in the petition] is of immediate significance to everyone who crosses our border with a cell phone or other electronic device—and these days, that is virtually every international traveler.”

The group’s argument is fairly straightforward: the digital age means warrantless border searches cannot constitutionally include electronic devices–even though warrantless border searches were the norm prior to the widespread adoption of laptops and smart phones.

“Today, virtually everyone carries an electronic device that routinely contains more personal information than could be found in their own homes,” the petition notes–citing a standard from Fourth Amendment precedent outlined in the landmark case of Riley v. California, where the court unanimously held that warrantless cell phone searches during an arrest are unconstitutional.

“But the analog era rule that ordinary searches at the border are categorically reasonable without individualized suspicion, adopted when people did not carry anything remotely approaching the amount and kinds of personal information they now carry on electronic devices, renders every traveler vulnerable to revealing a vast array of personal details as a condition of international travel,” the petition continues. “Here, as in Riley, ‘innovation[] in surveillance tools’ necessitates a re-examination of the historical purposes and protections of the Fourth Amendment.”

[image via Chip Somodevilla/Getty Images]

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