Digital rights group sues DHS over warrantless surveillance at border

The Electronic Frontier Foundation filed a lawsuit Aug. 27 seeking legal and training documents that could shed new light on how the federal government is interpreting its legal authority to place GPS trackers on vehicles entering the United States.

The Freedom of Information Act lawsuit targets the Department of Homeland Security and component agencies Immigration and Customs Enforcement and Customs and Border Protection release

EFF cites court filings by the Department of Justice in 2018 for a criminal case involving two defendants charged with federal drug trafficking in which federal border agents attached a GPS tracker to the suspects' truck and an attached trailer believed to be holding cocaine while it was passing through the U.S.-Canadian border at the request of an FBI agent and Los Angeles Police Department officer leading the investigation. The suspects were then tracked as they drove nearly 2,000 miles to from Michigan to California.

According to government lawyers, the decision to attach a GPS tracker to the suspects' car without a warrant was reached after the pair consulted with agents from ICE and CBP. In multiple meetings, both organizations claimed that legality of such surveillance for vehicles passing through the border was permitted.

In a sworn declaration, Matthew Allen, Assistant Director of the Homeland Security Investigations division of ICE, told the court that "it is HSI's policy that a customs officer may install a GPS tracking device on a vehicle at the United States border without a warrant or individualized suspicion" under limited circumstances.

A judge later dismissed the case, saying that the use of such a tracker without a warrant constituted "significant government misconduct" on the part of the FBI and LAPD.

In June 2018 the Supreme Court ruled in U.S. v. Carpenter that geolocation data from cellular phones and other digital devices are largely protected under the Fourth Amendment.

Later on in 2018, EFF sought records of policies and procedures regarding the use of GPS tracking devices on vehicles crossing the border as well as any associated training materials. ICE replied that there were only three pages of documents relevant to the request, all of which were being withheld because they were "law enforcement sensitive" information that that could "risk circumvention of the law" if made public. According to EFF's filing, CBP acknowledged receipt of the FOIA but has yet to substantively respond to the request.

Saira Hussain, a staff attorney at EFF, said that she believes there are more than three pages of documentation relevant to their request and that her organization is seeking to learn whether DHS' policy is still active or continuing on in an altered form since the Carpenter decision.

While courts have recognized a general security exception at the border, the application of that special authority in the digital domain is not as settled. EFF and other organizations are waging a number of legal battles challenging what they view as the government "near limitless" powers to circumvent Fourth Amendment protections at the border, whether through GPS tracking, search and seizure of electronic devices or the increasing use of ankle monitors for immigrants awaiting deportation.

"Again and again what we see is CBP and ICE say 'this is the border, this is different, the Fourth Amendment doesn't apply here' and what we keep coming back with is that the Constitution does apply at the border," said Hussain.