Eleven plaintiffs have banded together to sue the Department of Homeland Security with the help of the Electronic Frontier Foundation (EFF) and the American Civil Liberties Union (ACLU), arguing that the current policies around border officers searching the electronic devices of US citizens are unconstitutional invasions of privacy.

In January of this year, natural-born US citizen Sidd Bikkannavar was detained at an airport in Houston after a short personal trip to Chile. Following a brief interrogation, Bikkannavar was told to hand over his phone and tell custom agents the passcode. Bikkannavar, who works for NASA's Jet Propulsion Laboratory (JPL), initially refused, explaining to the agents that the phone is the property of NASA and contains classified information that cannot be shared.

The customs agent insisted they had the authority to search the phone and Bikkannavar would not be allowed to leave until he handed over his passcode. Bikkannavar reluctantly submitted and the phone disappeared for 30 minutes before being returned with the agent ambiguously commenting that it had been searched using "algorithms."

The JPL tech team was reportedly not at all happy about the security breach and in the days following the event Bikkannavar wrote on his Facebook page, "I'm back home, and JPL has been running forensics on the phone to determine what CBP/Homeland Security might have taken, or whether they installed anything on the device."

Bikkannavar is one of 11 plaintiffs that have banded together to sue the Department of Homeland Security with the help of the Electronic Frontier Foundation (EFF) and the American Civil Liberties Union (ACLU). The case is arguing that the current policies around border officers searching the electronic devices of US citizens are unconstitutional invasions of privacy, and violations of the First and Fourth Amendments to the US Constitution.

Over the last few years, the instances of electronic devices being searched and/or detained at the border has dramatically increased. In the 2015 fiscal year, Customs and Border Security (CBP) reportedly searched over 8,000 electronic devices. That number doubled in 2016 to over 19,000, and it has been reported that in the first half of the 2017 fiscal year CBP has already conducted nearly 15,000 electronic device searches.

The current law allows government agents working at the border more power than they would be generally afforded on US soil. A "border search exception" was implemented by the US Supreme Court, circumventing the specific Fourth Amendment prohibition on "unreasonable searches and seizures." This allowed border agents to perform warrantless and suspicionless searches in a "routine" capacity for those entering or exiting the US.

Keeping pace with technological advances has never been a strong suit for government, and with the rise of digital devices there is a degree of legal uncertainty over whether the searching of a person's digital device can be constituted as "routine."

Complicating the issue even further has been the trend towards cloud computing, blurring the line between content explicitly held on a device and content simply accessible by a device. While the government is keen to maintain the idea that searching a device found on a person is akin to searching their pockets or baggage, some recent court decisions have suggested this isn't the case.

The Supreme Court stated in 2014, in ruling on a local police issue, that searching the cloud-stored data on a person's device without a warrant, "would be like finding a key in a suspect's pocket and arguing that it allowed law enforcement to unlock and search a house."

This lawsuit filed by the EFF and ACLU will potentially make its way up to the Supreme Court, but this won't be a swift process. The situation certainly needs significant legal clarification though, as more and more of our data is moved into the cloud these privacy issues are becoming increasingly important.

"People now store their whole lives, including extremely sensitive personal and business matters, on their phones, tablets, and laptops, and it's reasonable for them to carry these with them when they travel," says EFF Staff Attorney Sophia Cope. "It's high time that the courts require the government to stop treating the border as a place where they can end-run the Constitution."

Source: Electronic Frontier Foundation