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

A federal judge in Massachusetts ruled on Thursday that a lawsuit challenging the government’s growing practice of searching electronic devices at the border without a warrant or any suspicion of wrongdoing can move forward. The case was brought by the ACLU, Electronic Frontier Foundation, and ACLU of Massachusetts on behalf of 11 plaintiffs whose smartphones and laptops were searched without warrants at the U.S. border. 

The government had sought to dismiss the case, arguing that the plaintiffs lacked standing to sue and that the Fourth and First Amendments provide no protections against warrantless and suspicionless searches of electronic devices at the border. To make its case, government lawyers pointed to routine searches of regular luggage, which border authorities are allowed to conduct without a warrant or any individualized suspicion. 

The judge rejected those arguments, finding that the plaintiffs — each of whom has had their phones or laptops searched by U.S. customs officers in the past and were at risk of future searches — could proceed. 

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The ruling rejects the government’s argument that searches of electronic devices should be treated the same as searches of luggage and other physical items. Citing the Supreme Court’s 2014 opinion in Riley v. California, which required police to get a warrant before searching a cell phone of a person placed under arrest, the judge explained that “electronic device searches are, categorically, more intrusive than searches of one’s person or effects. The ability to review travelers’ cell phones allows officers to view ‘nearly every aspect of their lives — from the mundane to the intimate.’” 

The judge continued:

In sum, the Court is not persuaded that Plaintiffs have failed to state a plausible Fourth Amendment claim here. Although Defendants may be correct that the border is different, the Supreme Court and First Circuit have acknowledged that digital searches are different too since they ‘implicate privacy concerns far beyond those implicated’ in a typical container search. In the absence of controlling precedent to the contrary, this Court cannot rule that this Fourth Amendment principle would not extend in some capacity to the border.

The case will now proceed to the next phase, where we look forward to explaining why border agents should have to get a warrant before being allowed to search through our private digital files.

Courts across the country have been addressing how to apply the Fourth Amendment in this context, given skyrocketing numbers of warrantless device searches at the border. Thursday’s decision comes a day after a federal appeals court in Virginia ruled that under the Fourth Amendment, U.S. border authorities cannot search travelers’ cell phones and other electronic devices without individualized suspicion of wrongdoing.

Both decisions join a growing chorus of judges weighing in on the issue in recent years. Given the range of judicial opinions on the matter, travelers enjoy different levels of protection depending on where they live. A nationwide standard that protects their constitutional rights is long overdue.

When West Milwaukee police killed Adam Trammell, a Black resident of the city, he was unarmed and alone in his locked apartment, just taking a shower. The police came because a neighbor had called them and reported that Trammel was acting “oddly.” Police arrived to do a “wellness check,” already knowing Trammell had schizophrenia. Trammell was not wanted for a crime. He was not a threat. But he wound up dead at the hands of law enforcement.  

Footage from a police body camera shows what happened.

Police called out to “Brandon” — the wrong name. They got no answer, so officers broke down his front door. They found Trammell showering in the bathroom, pulled back his shower curtain, and told him to come out of the shower. When he did not respond immediately, they tased him. Trammell screamed, fell down in the shower, and passed out. As soon as he came to, police again began demanding that he exit the shower. When he sat there rocking, they tased him again. He screamed again. Over the next 30 minutes, the police tased him 18 times. 

Trammell died on his living room floor.  He was 22. 

When police know — or should know — that they are interacting with a person with a disability, police have a legal obligation to proceed in ways that take into account the person’s disability. Most such changes are simple: recognize that it may take time for the person to understand what is happening, create a calm environment, have one person communicate simply and clearly, allow time for the person to respond to questions or instructions, and exercise patience.      

Such steps are called “reasonable modifications” under the Americans with Disabilities Act. They are legally required for people with disabilities. But, as with so many accommodations, implementing these practices across the board would benefit everyone — people with disabilities, the general public, and police officers themselves.

In Mr. Trammell’s case, police did the opposite, escalating the situation beyond measure. And now local officials will not hold the officers accountable. The Milwaukee County district attorney, John Chisholm, decided not to charge the police officers with any crime. The chief of police, Dennis Nasci, has said he does “not see any discipline coming down for what they did.” 

The killing of Mr. Trammell is part of a horrific pattern. In 2018 alone, police have shot and killed 64 people with mental health disabilities. This January, Alejandro Valdez was suicidal and threatening to kill himself. The police shot and killed him. In February, Orbel Nazarians was suicidal and threatening himself with a knife. The police shot and killed him. In March, Jihad Merrick was suicidal and pointing a gun at his head. The police shot and killed him. In April, Benjamin Evans was making suicidal comments. Police shot and killed him. 

The data indicates at least 25 percent of all police killings are people in a mental health crisis. And as with police killings in general, those killed by police while in mental health crises are disproportionately people of color, just as Adam Trammell was. But we can address this problem, so that everyone involved in a mental health crisis walks away alive.

First, police — who carry guns and are hired and trained to enforce criminal laws — should not be the first responders for people who are having a mental health crisis. Our first choice should be mental health professionals. They are trained and equipped to interact with people in a crisis.

There are examples of this at work in select cities, where local government has chosen to employ mobile crisis patrols with people specifically trained to work with, deescalate, and help people in crisis. Eugene, Oregon, has implemented a program that dispatches teams of crisis counselors and non-police first responders — EMTs, paramedics, or nurses — to respond to emergency mental health crisis calls instead of armed officers.

Barring the availability of mobile crisis patrols, when no firearm is involved, firefighters or EMTs would be better choices than police to do ‘wellness checks’ or to engage with people in a mental health crisis. These responders do not come equipped with a gun or Taser, and their training includes interacting with people who are in crisis.

Second, for the situations when police officers actually must be involved, they need different training — not additional training. It shouldn’t be a one-week training to learn how to work with people with disabilities or a way for police to get more resources while desperately needed community services — including mental health treatment — go without. We need different police training altogether from the ground up, starting at the police academy.

The Police Executive Research Forum agrees. 

In their groundbreaking report, “30 Guiding Principles on Use of Force,” they highlight the need for different training as well as a different policing culture. Nationally, police academies spend an average of 58 hours on firearm training but a mere 8 hours on de-escalation or crisis intervention. The PERF report explains that police culture emphasizes a “command and control” approach to every situation. But they point out that — absent an active shooter or a crime in progress — such an approach is likely to endanger lives. Taking time, assessing the situation, and responding calmly and appropriately are not just better for the public, it is better for the officers as well.     

Third, we need accountability. When police unlawfully take a life, district attorneys need to file charges. If they do not file charges, we need to vote them out. Police chiefs need to provide training, guidance, and policies so that officers are trained to assess situations, de-escalate problems, and keep themselves and the public safe. Police chiefs need to remove officers who react with violence instead of calm, whose fear or bias provokes irrational and dangerous responses to people in crisis and people of color. 

The crisis of police killings will not abate if officials refuse to enact these simple, obviously needed solutions. People with disabilities will continue to have their rights violated, and they will continue to die, if police can enter their homes, drag them from their showers, and kill them without consequence.

President Trump’s nominee to be CIA director, Gina Haspel, faced pointed questions from the Senate Intelligence Committee Wednesday morning. Senators asked about her role in the agency’s torture program and its cover-up, including her role in the destruction of dozens of videotapes documenting torture.

Haspel, however, was far from forthright, regularly evading questions or giving only vague answers.

Here are some takeaways from the hearing:

Haspel refused to say if torture is immoral

Haspel told senators that she has a strong “moral compass,” but she refused to answer when Sen. Kamala Harris (D-Calif.) asked whether she found the CIA’s torture practices to be immoral. Sen. Martin Heinrich (D-Nev.) also noted that Haspel was “giving very legalistic answers to very fundamentally moral questions.”

The Daily Beast reported that when Haspel had a supervisory role over the torture of a detainee at a CIA black site, documents from the time “provide no indication that Haspel opposed it, let alone stopped it—particularly when CIA headquarters pushed to intensify the torture at a subsequent black site.”

In the hearing, Sen. Jack Reed (D-R.I.) told Haspel that “at the time that you were involved” in the torture program, “you expressed no moral concerns.”

Haspel wouldn’t say whether she wanted the torture program to continue

When Sen. Ron Wyden (D-Ore.) asked Haspel if she ever called for the CIA’s torture program “to be continued or expanded” between 2005 and 2007, Haspel didn’t answer directly, only saying that she and her colleagues “believed in our work” and that she didn’t want to be put “on the sidelines.” Haspel even said that the real “tragedy” was “that the controversy surrounding the interrogation program” had “cast a shadow over what has been a major contribution to protecting this country.”

Wyden was troubled by her response, responding, “I would really like to have on the record whether you called for the program to be continued, which it sure sounds to me like your answer suggested.”

There is reason to believe that there was an effort in the CIA to expand the torture program at that time, as evidenced by a 2005 proposal uncovered in the ACLU’s lawsuit against the psychologists who helped devise the torture program. If Haspel did in fact advocate for the torture program from 2005 to 2007, it would have followed the publication of shocking photos of brutal torture at the Abu Ghraib prison in 2004. In 2005, the Senate passed Sen. John McCain’s anti-torture amendment and in December of that year, President Bush signed the Detainee Treatment Act into law. Everyone in Congress believed the CIA torture program was over — and it would be deeply problematic if Haspel was trying to keep it going.

Haspel refused to recuse herself from decisions on declassifying her own role in torture

In the run-up to the confirmation hearing, the CIA selectively declassified parts of Haspel’s record that paint her in a positive light, prompting senators to demand that more information be released.

As acting director of the CIA, Haspel has the authority to declassify documents about her own record. Under questioning from Sen. Angus King (I-Maine), Haspel admitted that she is the one who decides which documents the CIA will release, and she later refused to commit to recusing herself from the process.

Add your name to declassifY Haspel’s torture record

By choosing which information about her own record is made public, Haspel effectively gets to decide which questions can be answered at the committee’s public hearing and which questions must be asked at the classified hearing.  It would also raise significant conflict-of-interest concerns if Haspel, as CIA director, makes these decisions in response to Congressional requests for transparency or in court cases.

Haspel misrepresented the torture tapes

Under questioning from Sen. Dianne Feinstein (D-Calif), Haspel said that only one detainee was depicted in the 92 destroyed videotapes depicting the use of torture. Haspel drafted the cable ordering their destruction but strongly denied having a role in issuing the cable.

However, according to a document obtained in an ACLU Freedom of Information Act lawsuit, there were not one but two detainees featured in the videos, Abu Zubaydah and Abd Al-Rahim Al-Nashiri. Haspel was supervisor of the CIA black site where Nashiri was waterboarded and subjected to other torture tactics.

Haspel evaded questions about Trump’s views on torture 

Haspel demurred when asked about Trump’s views of torture, insisting that while she would not want to restart torture, she didn’t think “the president would ask me to do that.”

Trump, of course, has in the past advocated for torture tactics “worse” than waterboarding and even said on the campaign trail that he would order officials to take illegal actions like torture. Such inhumane abuse is something that our officials should be repudiating as loudly as possible, not brushing aside.

She also faced questioning about a potential Trump loyalty pledge.

Last June, former FBI Director James Comey testified before the same committee that President Trump asked him for a pledge of personal loyalty.

Sen. Reed asked Haspel what she would do in such a scenario and if she would inform Congress if Trump made the same request of her. While Haspel said she would not fulfill a pledge of loyalty to Trump, she declined to say that she would tell Congress about such a request, instead saying, “It’s a hypothetical. I don’t think it’s going to occur.”

“It does not seem to be hypothetical,” Reed responded. “People have alleged that has happened already.”

Beyond her actual record, the Senate must consider both moral judgment and commitment to transparency and congressional oversight in assessing any nominee for director of the CIA. Haspel raised more questions than she answered today.