Hugh Handeyside, Senior Staff Attorney, ACLU National Security Project
& Nathan Freed Wessler, Staff Attorney, ACLU Speech, Privacy, and Technology Project
& Esha Bhandari, Staff Attorney, ACLU Speech, Privacy, and Technology Project

In September 2017, we, along with the Electronic Frontier Foundation, sued the federal government for its warrantless and suspicionless searches of phones and laptops at airports and other U.S. ports of entry.

The government immediately tried to dismiss our case, arguing that the First and Fourth Amendments do not protect against such searches. But the court ruled that our clients — 10 U.S. citizens and one lawful permanent resident whose phones and laptops were searched while returning to the United States — could move forward with their claims. 

Since then, U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement have had to turn over documents and evidence about why and how they conduct warrantless and suspicionless searches of electronic devices at the border. And their officials have had to sit down with us to explain — under oath — their policies and practices governing such warrantless searches.

What we learned is alarming, and we’re now back in court with this new evidence asking the judge to skip trial altogether and rule for our clients.

The information we uncovered through our lawsuit shows that CBP and ICE are asserting near-unfettered authority to search and seize travelers’ devices at the border, for purposes far afield from the enforcement of immigration and customs laws. The agencies’ policies allow officers to search devices for general law enforcement purposes, such as investigating and enforcing bankruptcy, environmental, and consumer protection laws. The agencies also say that they can search and seize devices for the purpose of compiling “risk assessments” or to advance pre-existing investigations. The policies even allow officers to consider requests from other government agencies to search specific travelers’ devices.

CBP and ICE also say they can search a traveler’s electronic devices to find information about someone else. That means they can search a U.S. citizen’s devices to probe whether that person’s family or friends may be undocumented; the devices of a journalist or scholar with foreign sources who may be of interest to the U.S. government; or the devices of a traveler who is the business partner or colleague of someone under investigation.

Both agencies allow officers to retain information from travelers’ electronic devices and share it with other government entities, including state, local, and foreign law enforcement agencies.

Let’s get one thing clear: The government cannot use the pretext of the “border” to make an end run around the Constitution.

The border is not a lawless place. CBP and ICE are not exempt from the Constitution. And the information on our phones and laptops is no less deserving of constitutional protections than, say, international mail or our homes.

Warrantless and suspicionless searches of our electronic devices at the border violate the Fourth Amendment, which protects us against unreasonable searches and seizures – including at the border. Border officers do have authority to search our belongings for contraband or illegal items, but mobile electronic devices are unlike any other item officers encounter at the border. For instance, they contain far more personal and revealing information than could be gleaned from a thorough search of a person’s home, which requires a warrant.

These searches also violate the First Amendment. People will self-censor and avoid expressing dissent if they know that returning to the United States means that border officers can read and retain what they say privately, or see what topics they searched online. Similarly, journalists will avoid reporting on issues that the U.S. government may have an interest in, or that may place them in contact with sensitive sources.

Our clients’ experiences demonstrate the intrusiveness of device searches at the border and the emotional toll they exact. For instance, Zainab Merchant and Nadia Alasaad both wear headscarves in public for religious reasons, and their smartphones contained photos of themselves without headscarves that they did not want border officers to see. Officers searched the phones nonetheless. On another occasion, a border officer searched Ms. Merchant’s phone even though she repeatedly told the officer that it contained attorney-client privileged communications. After repeated searches of his electronic devices, Isma’il Kushkush, a journalist, felt worried that he was being targeted because of his reporting, and he questioned whether to continue covering issues overseas.

Crossing the U.S. border shouldn’t mean facing the prospect of turning over years of emails, photos, location data, medical and financial information, browsing history, or other personal information on our mobile devices. That’s why we’re asking a federal court to rule that border agencies must do what any other law enforcement agency would have to do in order to search electronic devices: get a warrant.

By Kade Crockford, Director, ACLU of Massachusetts Technology for Liberty Project

The outcome of a battle heating up at Google over the limits of employee free speech will have huge consequences for all of us. Will Google shut down internal dissent and silence whistleblowers? Or will the company live up to its initial motto, “Don’t be evil?”

In 2017, researchers Meredith Whittaker and Kate Crawford founded the AI Now Institute at New York University, with the goal of “produc[ing] interdisciplinary research on the social implications of artificial intelligence [in] four key domains: rights and liberties, labor and automation, bias and inclusion, and safety and critical infrastructure.” Since then, the group has published key research on race and gender discrimination in AI, public agency accountability, litigation related to algorithms, and more. (Full disclosure: The ACLU is a proud partner of AI Now.)

Both Whittaker and Crawford have strong ties to the tech industry. The former is the founder of Google’s Open Research Group, and the latter is a principal researcher at Microsoft. Both women still work for these companies, even though their work at AI Now often critiques the tech industry’s shortcomings and offers a perspective rooted in human and civil rights, instead of profit maximization — an unorthodox perspective in the Valley, to put it mildly.

For years, I’ve been impressed that Whittaker and Crawford could simultaneously work for and offer public critiques of these big tech companies and took that as an indication that Google and Microsoft are mature, if problematic, institutions. A willingness to tolerate internal dissent is important in any organization. Fostering such an environment is especially critical for companies like Google and Microsoft in the United States, where lawmakers have largely refused to impose regulations, leaving a dangerous amount of power in the hands of an elite — and often obsessively secretive — few in Silicon Valley.

But recent events suggest that at least at Google, executive patience with democratic debate and a culture of openness is wearing thin. According to press reports, Google has in recent months retaliated against both Whittaker and a fellow activist at the company, Claire Stapleton, after their successful organizing led to policy change at the nearly trillion dollar company.

In October 2018, The New York Times reported that Google had provided handsome exit packages to executives credibly accused of sexual harassment and assault in the workplace. The former head of the Android group, Andy Rubin, was paid $90 million to leave the company after he was accused of sexual wrongdoing. Google subsequently invested millions of dollars in a company controlled by Mr. Rubin. Then, in March of this year, the Times published yet more evidence that Google sought to protect powerful men accused of sexual malfeasance. The latest report showed that in 2016, Google paid executive Amit Singhal $45 million when he left the firm after an employee accused him of groping her at a work event.

But while Google provided golden parachutes to executives accused of sexual harassment and assault, the company simultaneously forced the victims of those incidents to take their complaints against the company through arbitration, denying them their day in court.

Googlers, led by activists like Whittaker and Stapleton, rebelled. In November 2018, 20,000 Googlers worldwide walked off the job, demanding the forced arbitration policy be repealed. The protest, joined by one in five Google employees worldwide, attracted global press and was devastatingly effective. Within days, the company announced it would eliminate the forced arbitration policy for people who spoke out about sexual harassment in the workplace. In February, facing further demands from workers, Google scrapped its forced arbitration clause entirely.

Whittaker’s organizing at the company hasn’t been limited to fighting for changes to the internal policy governing employee rights. She has been unapologetic in her defense of democratic values and has challenged Google’s work with the U.S. military and Chinese government. More recently, she was part of a group of concerned Googlers who protested the appointment of a transphobic reactionary from the Heritage Foundation to an external advisory board tasked with examining questions related to AI and ethics. That board was subsequently dissolved.

Now, Whittaker says, she’s facing retaliation from the company for her efforts to make Google a more accountable, equitable, and democratic institution. According to a letter she sent to co-workers, executives recently told her she would be forced to choose between her work with AI Now and her employment at the company. Claire Stapleton, one of the organizers of the anti-arbitration walkout, says she too has faced retaliation for her organizing, which included a demotion — only reversed when she hired a lawyer.

Google denies it retaliated against either employee. But last Friday, Whittaker and Stapleton organized a group of hundreds of Googlers to engage in a company-wide meeting about retaliation workers have faced across the world. According to them, over 300 people submitted their own testimonies that Google leadership has retaliated against them for their organizing. And Google employees are holding a sit-in tomorrow to protest retaliation they say employee organizers have faced.

In AI Now’s 2018 annual report, Whittaker and her colleagues wrote about the important role whistleblowers play at institutions like Google:

Technology companies should provide protections for conscientious objectors, employee organizing, and ethical whistleblowers. Organizing and resistance by technology workers has emerged as a force for accountability and ethical decision making. Technology companies need to protect workers’ ability to organize, whistleblow, and make ethical choices about what projects they work on. This should include clear policies accommodating and protecting conscientious objectors, ensuring workers the right to know what they are working on, and the ability to abstain from such work without retaliation or retribution. Workers raising ethical concerns must also be protected, as should whistleblowing in the public interest.

As Whittaker and her activist colleagues have demonstrated over the past few years, the world is watching Google and other big tech companies. The decisions these companies make about product design, political lobbying, and which technologies they’ll build and sell to which types of governments impact all of us and future generations. That’s why retaliating against Big Tech employees who push their employers to do the right thing isn’t just a threat to the individual livelihoods of those workers — it’s a threat to us all.

By Hannah Cox, National Manager, Conservatives Concerned About the Death Penalty

What do Michael Bloomberg and Oliver North have in common? How about Michelle Malkin and Kim Kardashian West, or Ron Paul and Bernie Sanders? They may not share much turf when it comes to their political or social views, but they do all agree on one point that may surprise you.

They all oppose the death penalty.

Support for repealing the death penalty is diverse, it is growing, and it is bipartisan in nature. The brokenness of the death penalty system, long documented in local headlines and the cases they highlight, has hit a turning point with the public. This year alone, Republicans sponsored death penalty-repeal bills in ten states. That’s in keeping with trends that my organization, Conservatives Concerned About the Death Penalty, has been tracking since 2012.

I am a walking example of this trend.

Growing up as a conservative and as the daughter of a Southern Baptist minister, my views on the death penalty were for many years exactly what one might expect—absolutely pro. But I changed my stance after finally digging deeper, and learning just how frequently innocent people are caught up in the system. I learned about the outrageous costs of the death penalty’s operation. I learned that the death penalty does not deter crime. I learned of the extraordinary arbitrariness and racial bias in sentencing.

These are the reasons that many on the political right, like myself, are joining the opposition to capital punishment and fighting for repeal.

At the end of the day, the death penalty is another failed big government program marked by the same inefficiency and misallocation of resources found throughout almost all bureaucracies. The tenets of conservatism are straightforward: a belief in limited government, fiscal responsibility, and the protection of the sanctity of human life. The death penalty does not meet any of those metrics, so it makes sense that conservatives are abandoning it in droves.

It’s been a rough few years politically in our country. The divisiveness and the disagreements have left many Americans feeling as though we’ll never come together again. I would argue that our ability to band together despite differences in ethnicity, religion, socioeconomic status, and culture is what has made American civil society so strong for so many years. On this point, the encouraging thing that I see in my work and in the movement against the death penalty at large is it is providing those of us eager to find new common ground with an opportunity to work across the aisle, on an issue we can all agree is unjust.

As state legislatures across this country debated repeal bills, I’ve sat shoulder to shoulder in hearings with people from all walks of life: Democrats, Republicans, Libertarians; murder victims’ family members and death row exonerees; Baptist, Jewish, Catholic, and Unitarian religious leaders; retired law enforcement, state attorneys general, judges, and lawyers. The list goes on and on. We have come together despite perceived and actual differences in stations, beliefs, and backgrounds to eliminate this broken system. There is power in that.

In addition to the growing number of repeal bills across the nation, there are some other signs of success that point to Americans’ growing disapproval. New death sentences are actually down 60 percent since 2000, and last year was the fourth year in a row that the country carried out fewer than 30 executions. All 25 of those executions stemmed from just eight states, and Texas alone was responsible for over half of them.

In short, not only is usage of the death penalty down, it is concentrated and isolated.

I often say that support for the death penalty runs a mile wide and an inch deep. The minute someone takes time to examine the facts around the death penalty support quickly wanes. My elevator pitch response to “what do you do?” is almost always real-time evidence of this fact. There are simply too many problems with the system for us to allow it to continue.

Given all the progress we have made in repealing the death penalty in recent years, and the diversity of support that made it happen, I think it makes perfect sense for Conservatives Concerned About the Death Penalty and the ACLU to work together as the U.S. marches closer to ridding the nation of this broken system forever.

When those opportunities arise and we find issues that unite us, I believe we must choose to come together. And when we come together as Americans, we know big things happen and we can fulfill the promise of justice in our justice system, one defined by equity, conscience, and our shared values as a society.