While the Ninth Circuit Court of Appeals considers whether to keep the suspension of President Trump’s travel ban in place, a related legal matter is being raised: Do U.S. border patrol agents have the right to ask for an immigrant’s phone in order to review its social media contents and more?
According to a Mashable report, immigration lawyers have stated that the law on this matter is “unclear” and, frankly, a “confusing mess.” If these types of searches turn into a broader policy, then the fourth amendment, which prevents unreasonable searches and seizures, would come into play.
The recent president of the American Immigration Lawyers Association, Leslie Holman, told Mashable that the matter becomes whether a search is warrantless or not and that such a search violates an expectation of privacy. Holman and other immigration lawyers stated that this “expectation of privacy doesn’t always translate into actual privacy when immigrants and travelers are trying to get through airport security” because border officials can claim “reasonable suspicion” to warrant a phone search. According to another immigration lawyer: Because the regulations aren’t clear, these officials have a lot of power and discretion.
While it’s debatable whether these border phone searches are legal or not, most would agree that they aren’t very realistic, given the thousands of international travelers entering the United States every day. Bottom line: That’s a lot of posts, tweets, photos and videos to review.
April Doss, a lawyer, data privacy expert and former associate general counsel for intelligence law at the NSA, shared with Mashable a possible solution: storing social media information and reviewing it later. But this, points out Mashable, leads to other legal issues, which fall within “legal gray area so murky it’s almost impossible to navigate.”