The Bill of Rights at The Border
The U.S. border has been thrown into the spotlight these last few months, with border agents detaining travelers for hours, demanding travelers unlock devices, and even demanding passwords and social media handles as a prerequisite for certain travelers entering the country. As the U.S. government issues a dizzying array of new rules and regulations, people in the U.S. and abroad are asking: are there meaningful constitutional limits on the ability of border agents to seize and search the data on your electronic devices and in the cloud?
The answer is: Yes. As we'll explain in a series of posts on the Bill of Rights at the border and discuss in detail in our border search guide, border agents and their activities are not exempt from constitutional scrutiny.
The First Amendment is meant to safeguard five fundamental rights: speech, assembly, religion, press, and petition to the government for redress of grievances. The First Amendment also protects the right to exercise these basic rights anonymously because, as Supreme Court Justice John Paul Stevens wrote:
Anonymity is a shield from the tyranny of the majority. . . . It thus exemplifies the purpose behind the Bill of Rights and of the First Amendment in particular: to protect unpopular individuals from retaliation . . . at the hand of an intolerant society.
But when border agents scrutinize the massive volume of sensitive information in our digital devices or in the cloud, they infringe on First Amendment rights in at least four distinct ways.
First, device searches may reveal your social media profile handles – inclusive of pseudonymous accounts. This allows border agents to match those handles to your passport identity, which effectively unmasks you and prevents you from being able to speak anonymously online. The same is true if you comply with an agent's demand that you tell them your social media handles.
Second, device searches may also chill your ability to associate with an expressive institution anonymously, like a political group. Border agents can use a device search or knowledge of your social media handles to unearth a variety of private associational ties that can be mapped and harvested for more personal information and connections. What is worse, the investigation may intrude upon your contacts' privacy as well as your own.
Third, requiring you to let CBP review your web-browsing history violates your right to access and receive information anonymously. This intrusion also occurs when CBP scrutinizes your shopping histories to reveal your private decisions to acquire expressive materials, such as books and movies.