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Should the USCIS be able to search your devices without a warrant?

Criminal defense attorneys and civil rights activists have raised the alarm at the increasing number of electronic devices being searched at our borders and at international airports. In April, the U.S. Citizenship and Immigration Services reported that it searched 19,000 devices in fiscal year 2016 -- a shocking increase over the 8,500 it searched in 2015. In the first half of 2017 the agency had already searched nearly 15,000.

Two citizens and a green card holder recently filed suit against the USCIS' parent agency, the Department of Homeland Security. They were apparently charged with no crime but had their devices seized for prolonged periods.

One plaintiff, a U.S. citizen, was stopped at the Dallas Airport on Jan. 21. He was asked to unlock both his personal and business cellphones. He allowed agents to search his business phone but declined to allow a search of his personal phone. Despite his cooperation in regards to the business phone, both of his phones were confiscated. The business phone was returned two months later and the agency has yet to return his personal cell phone.

"You are left in the dark with no answers," he told Reuters. "Will I get my phone back, did I do anything wrong? ... They took my phone, and that's all I know."

Government agents from local police to the USCIS are prohibited by the Fourth Amendment from performing unreasonable searches and seizures. Generally, that means that a warrant is required for most searches, unless there is an exception. Common exceptions include the person's consent, probable cause to believe criminal activity will be found, or an emergency justifying an immediate search. The exception being used here is the so-called "border search" exception, which allows federal agents to conduct searches within 100 miles of the border without the need for a warrant.

That exception doesn't act as a blank check, however. The search or seizure still must be objectively reasonable. However, the remedy for an unreasonable search is usually the suppression of any evidence gained from that search. Therefore, people who are not charged with a crime must seek a remedy via civil lawsuits.

In this case, the plaintiffs claim the searches and confiscation of their devices violates their free speech and privacy rights, according to Reuters. They are represented by the ACLU and the Electronic Frontier Foundation.

Do you think the USCIS is acting reasonably by searching and seizing devices from people who don't appear to be suspected of any crime?

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