A "constitutional loophole": How US civil liberties are tested via phone checks Aljazeera Technology
30 April 2025, 17:31
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Amir Makled, a lawyer from Michigan, travels often. He travelled abroad as recently as December and came back to the US without any problems.
"I've travelled abroad at least 20 times. I have travelled across Europe. "Every year, I travel to Lebanon," he remarked.
However, it was a very different experience when I returned to the Detroit Metro Airport this month.
When they arrived at a customs checkpoint, he and his family had just returned from a spring break vacation in the Dominican Republic.
After glancing at me, the agent turned to face another agent and enquired as to whether the TTRT agents were there. I had no idea what this meant.
He looked up the acronym on Google. Tactical Terrorist Response Teams is what it stands for.
He said, "As an Arab American and a Muslim American, I always worry that I might be randomly chosen to be stopped or profiled when I travel, even if I'm driving in from Canada."
"I thought, 'Okay, I'm going to be profiled here,' when he said those words."
Makled and his family were indeed ordered to move to a different room.
Makled was aware that he could not be refused admission into the United States since he is a citizen of the nation and was born in Detroit, Michigan. His wife and children should go through the checkpoint without him, he said.
"In that sense, I was aware of my rights at the border. Additionally, I knew the scope of border searches," he said. "I have never before been stopped until now."
However, what followed would place the attorney in a vulnerable situation.
Border control officers are legally permitted to search a person's possessions. The goal is to prevent risks to the environment, illegal activity, and security from entering the nation.
However, such searches also include electronic device contents. And it makes one wonder what should be safeguarded from the government's probing eyes and what should be controlled.
A danger to the confidentiality of the attorney-client
Makled was aware that his phone may be taken by the border guards. But as a lawyer, he had to deal with a difficult moral conundrum. Confidential lawyer-client data was on his phone.
A fundamental principle of the American legal system is that a client may speak openly with their attorney while knowing that their words will remain private.
Makled spent a lot of time working on his phone. He informed the border guards he couldn't give them the gadget when they asked him to.
"My phone is the source of all of my emails, texts, files, and cloud-based office software," he said.
An expanding pattern
Border control officials have had the authority to search anybody entering the country, their baggage, and any other materials they may have in their custody at the time of the inspection for over a century according to Title 19 of the US Code.
However, modern digital gadgets hold a lot more information than is necessary for a person's journey.
The great majority of the 47,047 electronic devices that border control agents checked during the most recent fiscal year belonged to non-US nationals.
Compared to the previous fiscal year in 2023, when US Customs and Border Protection recorded 41,767 electronic searches, it is an almost 13 percent increase.
The method has long been plagued by the issue of whether these searches may be abused for retaliation or political advantage.
For example, in November 2018, Andreas Gal, a tech worker at Apple, said he was arrested on his way back to San Francisco after a foreign trip.
Gal was flagged for the TTRT, much as Makled. Additionally, customs officials pressed to check his personal devices, just as the lawyer did. He declined. Gal subsequently said that he thought he was singled out because of the political opinions he posted online.
However, experts worry that the danger of these searches has increased in recent weeks.
President Donald Trump has attempted to deport foreign nationals he believes to be critical of the United States or its partner Israel since he was elected to a second term in January. Evidence purportedly used to exclude individuals from the nation has included material from technological devices.
Rasha Alawieh, a kidney transplant expert, for instance, flew back to the United States from her home country of Lebanon but was refused re-entry. She was able to work in the US since she had a valid H-1B visa.
According to news sources, the Trump administration used pictures of Hezbollah leader Hassan Nasrallah that were found on her phone as justification for her expulsion.
Following Alawieh's deportation, the Department of Homeland Security issued a statement stating that "endorsing and aiding terrorists who kill Americans is grounds for visa issuance to be denied."
The French government also claimed in March that a scientist who was a citizen of France was barred from entering the United States due to political messages on his phone.
However, the Trump administration has refuted that charge.
Homeland Security spokesman Tricia McLaughlin said on social media, "The French researcher in question was in possession of confidential information on his electronic device from Los Alamos National Laboratory — in violation of a non-disclosure agreement."
"It is obviously untrue to say that his removal was motivated by political views."
A lack of agreement among lawyers
While in border control custody, a gadget may be subject to one of two screenings.
A "light" search occurs when a police officer manually searches an electronic device. The gadget must be linked to other devices in order to do an advanced search, which is required by law to need "reasonable suspicion" of a crime. Weeks or months may pass before the gadget is returned to its owner.
Although US individuals are not required to unlock their electronic devices in order to re-enter the country, border authorities are not required to get a warrant in order to inspect an electronic device.
Refusing to provide these facts, however, may result in entrance denial for visitors who are not citizens or permanent residents of the United States.
However, analysts claim that these actions present significant issues with the US Constitution's Fourth Amendment, which protects citizens from arbitrary government searches and seizures.
According to Esha Bhandari, deputy director of the Speech, Privacy and Technology Project of the American Civil Liberties Union, she has seen instances when the government circumvents Fourth Amendment safeguards by using these border inspections.
According to Bhandari, "the government is increasingly treating this as a constitutional loophole."
"Instead of waiting to see if they can establish probable cause, which calls for a judge to issue a warrant, they have someone under investigation, and they wait until someone crosses the international border and use that as a convenient opportunity to search their devices."
However, there is disagreement about how far that loophole may extend.
According to Saira Hussain, a senior staff attorney at the Electronic Frontier Foundation, US courts are still at odds about the boundaries and extent of digital device searches.
According to Hussain, "there are currently three different rulings on exactly which part of your phone can be searched, for what purposes [or] what level of suspicion is needed, whether you fly into San Francisco vs. Boston vs. Atlanta." "The issue has been decided by several lower courts, [but] there has not been uniformity."
Makled said that he had not been dissuaded from travelling or advocating for contentious topics.
"This strikes me as a kind of intimidation. He defended the protester who was detained at the University of Michigan, saying, "It's an attempt to dissuade me from taking on these types of cases."
"I declare that I will not be deterred. I will keep doing what I think is right.
Al Jazeera is the source.
