In the United States, a police officer has to get a warrant before searching the property of someone who's under suspicion or has been arrested — a law that also covers electronic property like a mobile device or laptop. Yet that protection does not extend to airports, where Transportation Security Administration (TSA) employees are free to search the electronic devices of anyone passing through the U.S. borders.
On March 12, (ACLU) Foundation of Northern California filed a Freedom of Information Act lawsuit requesting government documents that detail the policies around this process for domestic travelers, which the organization says are "shrouded in secrecy."
“TSA is searching the electronic devices of domestic passengers, but without offering any reason for the search,” said ACLU staff attorney Vasudha Talla in a statement. “We don’t know why the government is singling out some passengers, and we don’t know what exactly TSA is searching on the devices," she said. "Our phones and laptops contain very personal information, and the federal government should not be digging through our digital data without a warrant.”
The use of electronic property has become a hot legal issue of late, as governments seek more latitude in using personal data to seek out and prosecute wrongdoers. VICE Motherboard reports that U.S. Customs and Borders Protection (CBP) agents have recently increased the number of searches done on electronic devices: from 5,000 in 2015 to over 19,000 in 2016 and over 30,000 in 2017. That's an increase of over 70 percent from 2015-2016, and nearly 60 percent from 2016-2017 — a spike that made its way into many a news report.
An October 2017 announcement of increased screenings, plus a directive on electronic searches released by the CBP earlier this year, suggest that the agency has no intention of stopping these searches.
“We don’t know why the government is singling out some passengers, and we don’t know what exactly TSA is searching on the devices"
"Travelers are obligated to present electronic devices and the information contained therein in a condition that allows inspection of the device and its contents," the mandate reads, noting: "Passcodes or other means of access may be requested and retained as needed to facilitate the examination of an electronic device or information contained on an electronic device, including information on the device that is accessible through software applications."
Unless airport security gets a modern upgrade, such policies could put passengers' privacy at serious risk. The ACLU's lawsuit is seeking records from the TSA field office in San Francisco and the TSA headquarters in Arlington, Virginia, with a focus on the policies and protocols around searches, the equipment and software used to extract data, and how officers conducting the searches are trained. The ACLU did not receive a response to a public records request filed in December 2017, prompting this most recent lawsuit.
“It speaks to a growing attempt by the government to investigate individuals not based on probable cause or reasonable suspicion, but perhaps based on impermissible factors,” Talla told The Guardian."These are materials that should not be terribly difficult to track down. We’re just not clear what they’re doing and why they’re doing it.”