Travelers in recent years have learned, perhaps the hard way, that Customers and Border Patrol (CBP) agents can detain you at the airport for refusing to allow them to search your cell phone. Under the Border Doctrine, a search warrant generally required under the Fourth Amendment is not necessary to conduct a reasonable search at the airport.

In recent years, this doctrine has been applied to both immigration and emigration, to U.S. and foreign citizens alike. But many believe these searches are getting out of hand. When can you sue over these cell phone searches?

Which Suits Prevail Against the Border Doctrine?

As attorneys like to say, you can sue the pope for rape, but you might not win. People can generally file any suit they want, but which of these suits will prevail? Usually the ones that violate the “general reasonableness” requirement will not be dismissed. It is generally reasonable to take a laptop or cell phone from travelers for up to five days to review them.

However, the search is limited to what’s on that actual device; border doctrine searches are not allowed to access a traveler’s digital cloud data. Also with regards to reasonableness, and according to agency directives, if a CBP officer wants to search a device by attaching separate computer equipment to it, there must be a reasonable suspicion or a national security interest. This, however, does not include mere manual searches by agents.

Checking U.S. Citizen Devices When Leaving the U.S.

Recently, Haisam Elsharkawi, a California man, was departing out of Los Angeles International Airport for a trip to Saudi Arabia to go on a hajj, which is a Muslim pilgrimage. While in a boarding line for Turkish Airlines, a CBP officer pulled him out of line and questioned him about how much cash he was carrying. Questioning became intense, especially after officers asked Elsharkawi to unlock his phone, which he initially refused to do. Elsharkawi asked if he could have an attorney present, but his request was denied, and possiblytaken as a sign of guilt.

After about four hours of questioning, Elsharkawi finally acquiesced and let agents search his phone. Elsharkawi has now filed a lawsuit against the federal government for what he claims was an unconstitutional search of his phone. What’s interesting about Elsharkawi’s suit is that he was an outbound traveler, which is a vary rare occurrence; most other documented searches are of incoming travelers. Time will tell if Elsharkawi prevails.

If you feel that your constitutional rights have been violated by CBP officers, contact a local civil rights attorney. Though the border patrol does have wide discretion in maintaining national security, it is not all powerful. There are constitutional limits to border searches of electronic devices. A lawyer can advise you of your rights and can help you understand the next steps to take to protect your privacy.

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