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Judge: Case Against Cell Phone Searches Goes Forward

By William Vogeler, Esq. on May 15, 2018 | Last updated on March 21, 2019

In a blow to the Trump administration's border battles, a federal judge in Colorado said plaintiffs may continue their lawsuit against warrantless searches of cell phones and laptops.

The complaint claims the searches violate the Fourth Amendment, and Judge Denise Casper said they have a case. She said the law was unclear, but cited a recent U.S. Supreme Court decision that said police need warrants to search a suspect's cell phone.

It comes at a time when federal officials have more than doubled cell phone searches of people coming into the United States.

Increasing Cell Phone Searches

Customs officers at American airports and borders searched more than 30,000 cell phones and other electronic devices last year. That was nearly a 60 percent increase over 2016, according to records from the Homeland Security Department.

Privacy advocates attribute the increase to President Trump's immigration policies, and argue that the searches violate Constitutional protections against unreasonable searches. But the courts have allowed such border searches when based on compelling concerns about crime and terrorism.

In Riley v. California, however, the U.S. Supreme Court said police need warrants to search cell phones and electronic devices when they arrest anyone. Citing Riley, Casper said "electronic devices implicate privacy interests in a fundamentally different manner than searches of typical containers or even searches of a person."

"In sum, the Court is not persuaded that Plaintiffs have failed to state a plausible Fourth Amendment claim here," she wrote and denied the government's motion to dismiss.

'Plausible' Fourth Amendment Claim

The American Civil Liberties Union and the Electronic Frontier Foundation filed the lawsuit on behalf of 11 travelers, including 10 citizens and one permanent resident.The plaintiffs included a military veteran, a NASA engineer, two journalists and a computer programmer.

"The court has rightly recognized the severity of the privacy violations that travelers face when the government conducts suspicionless border searches of electronics," said ACLU attorney Esha Bhandari.

Reuters reported that American travelers had their electronic devices searched about 8,500 times in 2015 and about 19,000 in 2016. There were approximately 32,200 in 2017.

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