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Legal Professionals Raise Concerns Over Warrantless Phone Searches by Border Patrol

A panel of legal experts met with a Senate Homeland Security subcommittee to raise concerns over the constitutionality of Customs and Border Patrol (CPB) agents stationed at the northern and southern borders being able to search cellphones without warrants. For years, CPB’s policy has allowed border agents to force travelers and immigrants stopped at the border to unlock their electronic device without first obtaining a warrant—the only condition is that there is “reasonable suspicion” to do so.

But Georgetown University law professor Laura Donahue testified in Washington last Wednesday, arguing that CPB’s warrantless searches are not only a violation of civil rights, they also lead to racial profiling. The tremendous increase in searches, Donahue claims, pose a complete breakdown of the constitutional rights that both migrants and U.S. citizens crossing the US border still enjoy.

The CPB reports that its agents have searched over 8,500 devices in 2015 alone. That number doubled to more than 16,000 searched in 2016 and soared “to more than 30,000 searches in 2017,” this according to data Donahue presented to the Senate subcommittee on Federal Spending Oversight and Emergency Management.

These figures only account for CPB searches. Immigration and Customs Enforcement (ICE), notorious for a slew of other controversial immigration policies, reported searching at least 4,400 devices in 2015 and over 23,000 devices in 2016.

In response to previous backlash, the CPB made slight changes to its existing policy, creating a classification of searches as either “basic” or “advanced.”

  • “Basic” searches involve a cursory assessment of a devices content
  • “Advanced” searches would involve the use of a second device to conduct a more thorough analysis

The policy change, however, is negligible as CPB remains at liberty to conduct thorough searches and bypass the “reasonable suspicion” requirement should they arbitrarily interpret a situation to be one that concerns “national security.”

In the meeting, Senator Rand Paul (R-KY) noted that this loophole has yet to be resolved. He also added that both ICE and CPB retain the ability to keep confiscated devices in their custody indefinitely.

Matthew Feeney from the Cato Institute claims that the searches create a hostile environment for people seeking to enter the country. “Knowing that your phone has gone to a backroom and has been searched by officers will change people’s behavior,” he explains.

Donahue also expresses her concern over how the agencies in question intend to use the collected data, citing a prior opinion published by the Supreme Court.

“The founders did not fight a revolution to gain the right to government agency protocols,” Donahue said. “It was a profound point. This is about rights, they should be statutorily guaranteed and not left up to whomever heads that organization or agency in terms of their regulation.”

If you, or a loved one, are dealing with this issue or some other immigration-related problem, don’t hesitate to get in touch with the legal team of the Lyttle Law Firm. Call our offices today at (512) 215-5225to schedule a consultation with immigration attorney Daniella Lyttle.

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