In a major victory for privacy rights, a federal court has held that the federal government’s suspicionless searches of smartphones, laptops, and other electronic devices at airports or other U.S. ports of entry are unconstitutional. The ruling in our case is a recognition that the Constitution protects us even at the border, and that traveling to or from the United States doesn’t mean we give the government unfettered access to the trove of personal information on our mobile devices.

BREAKING: In a major victory for privacy, a federal court ruled today that the government’s suspicionless searches of international travelers’ smartphones and laptops at airports and other U.S. ports of entry violate the Fourth Amendment. pic.twitter.com/SJDIERJdV5

— ACLU (@ACLU) November 12, 2019

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In recent years, as the number of devices searched at the border has quadrupled, international travelers returning to the United States have increasingly reported cases of invasive searches. For instance, a border officer searched our client Zainab Merchant’s phone, despite her informing the officer that it contained privileged attorney-client communications. And recently, at Boston Logan Airport, an immigration officer reportedly searched an incoming Harvard freshman’s cell phone and laptop, reprimanded the student for his friends’ social media posts expressing views critical of the U.S. government, and denied the student entry into the country following the search.

These cases aren’t unique. Documents and testimony we and the Electronic Frontier Foundation obtained as part of our lawsuit challenging the searches revealed that the government has been using the border as a digital dragnet. CBP and ICE claim sweeping authority to search our devices for purposes far removed from customs enforcement, such as finding information about someone other than the device’s owner.

The court’s order makes clear that these fishing expeditions violate the Fourth Amendment. The government must now demonstrate reasonable suspicion that a device contains illegal contraband. That’s a far more rigorous standard than the status quo, under which officials claim they can rummage through the personal information on our devices at whim and with no suspicion at all.

It’s difficult to overstate how much personal information our electronic devices contain, and how revealing searches of those devices can be. Our smartphones are unlike any other item officers encounter at the border — they likely contain years of emails, messages, videos, photos, location data, browsing history, and medical and financial data. A search of our clients’ devices revealed photos of themselves without head coverings worn in public for religious reasons. Others had information on their devices related to their work as journalists.

The bottom line is that for most of us, our phones contain far more information than could be found during a thorough search of our homes.

The court recognized these critical privacy issues in its ruling. It stated that travelers’ privacy interests in their devices are “vast” and that “the potential level of intrusion from a search of a person’s electronic devices simply has no easy comparison to non-digital searches.” In other words: Digital is different. While the government can search luggage and other physical items at the border without individualized suspicion, it can’t use that authority to rifle through the universe of personal data on our electronic devices.

In reaching that conclusion, the court relied on recent Supreme Court decisions that make clear that older rules under the Fourth Amendment cannot be mechanically extended to justify new kinds of invasive digital-age searches. As the Supreme Court put it, equating searches of physical items and digital devices “is like saying a ride on horseback is materially indistinguishable from a flight to the moon.... Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse.” The federal court explained this week that the magnitude of the privacy harms is no less great in the context of border searches, requiring stronger Fourth Amendment protections against searches of electronic devices at the border as well.

The court has not yet issued an order regarding how the government should implement the ruling.

Significant work remains to be done to ensure that government officials respect our constitutional rights in the digital realm and at the border. The court’s ruling is a big step in the right direction.

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

Following a hearing over two days on the issue of Senate Bill 7066, a federal judge in Tallahassee released an order in our favor on Oct. 18.

In court, our clients demonstrated that the law SB7066 unfairly denies their ability to register and vote in Florida elections. The most important immediate impact of the judge’s order is that the 17 named plaintiffs in the consolidated case can register and cast a ballot in upcoming city, state, and federal elections, but the order also opens a path for many others to regain their rights.

The unconstitutional law, SB7066, requires returning citizens with past felony convictions to not only finish their incarceration and probation but also pay any outstanding fines, fees and restitution before they can vote. In passing the bill earlier this year, members of the Florida Legislature undermined Amendment 4, which was approved by over five million Florida voters in November last year and which returned the ability to vote to as many as 1.4 million people. 

Our motion for preliminary injunction was based generally on two legal issues: the state can’t engage in wealth discrimination when it comes to voting, and the state has failed to establish a workable solution for returning citizens to know what fees, fines, and other money obligations, if any, they’re expected to pay pursuant to SB7066 before voting. Judge Robert Hinkle acknowledged these sometimes intractable difficulties and made quite clear that the denial of the right to vote cannot be based on someone’s inability to pay. 

Although the court’s specific injunction concerned the 17 named plaintiffs in the case, the order explained the requirements of the constitution, which must be followed by the state. As such, returning citizens who believe they’re being unconstitutionally prevented from voting may come forward and ask state officials to be included in our democracy. Our team is intent on helping the state ensure the opportunity to register and vote for  Florida’s 1.4 million returning citizens, especially for the hundreds of thousands whom we believe may owe money amounts that would prevent them from voting under Amendment 4. The State of Florida needs to enable these individuals to register in time to participate in upcoming opportunities to vote, including the March 17, 2020 presidential primary.

Beyond the work we’re doing to help make Judge Hinkle’s preliminary injunction a reality for all returning citizens, our team is continuing to prepare for the final hearing in the case, which is scheduled for the week of April 6, 2020. We expect there will be many opportunities to help decision makers correct the flaws in SB7066, so that Floridians can be confident in our election system for the important elections coming up throughout 2020.

Voting is a fundamental right. We are thankful for the constitutional safeguards that keep politicians from restricting the right to vote to only those people who can afford to pay for it.

We feel a huge sense of gratitude for our brave clients who stepped forward to share their stories and fight in court for the right to vote for all Floridians. The chance they have taken to fight for voting rights in our country is profoundly moving. Finally, we feel the support from the more than 5.1 million voters who made Amendment 4 the law of the land in Florida last Nov. 6. 

The goal line to protect the fundamental intent of Amendment 4 is in sight and we are going to get there together.

My name is Kimberly Haven. I am an activist, an advocate, and I have also been referred to as the “tampon queen.” I got this moniker because, while I was incarcerated, I learned how to make my own tampons out of the subpar menstrual products I was “given” while incarcerated. 

For those who do not have firsthand experience with it, incarcerated women are typically provided with a very limited number of subpar products you would never buy outside of the carceral system. Access to pads and / or tampons is not a given—they are closely restricted and sometimes run out, leaving women without any solutions except to beg for more from the guards. More standard pads and tampons are available in the commissary, but you have to pay for them, which is often out of reach for many incarcerated women. Thirty-eight states have no law requiring the provision of menstrual products to incarcerated people.

Along with many of the women I was incarcerated with, I used my own homemade products rather than beg for more from an unconcerned correctional officer or risk bleeding through my clothes. Flash forward to my return home: as a result of my creativity to survive with some modicum of dignity, I ended up needing a hysterectomy.  My experience is not unique, but I offer it as a reason why the new Menstrual Equity issue brief  — designed with input from me and other women who have been impacted by the system— is critical to ensuring menstrual equity for all. I use my experience to make sure that the people we incarcerate in women’s facilities are also provided equity and, more importantly, dignity.

Despite being the fastest growing incarcerated population, women and girls are correctional afterthoughts.  We as a society treat them no differently than men. There is no dignity, no humanity, no compassion in a system that makes a person have to beg, borrow, or even make her own basic hygiene items. Pads and tampons have become weaponized. They are withheld in order to get certain behavior, and they are doled out in whatever amounts and at the convenience of correctional staff (when they are distributed at all). I know women who made products out of shreds of clothes or stuffing from inside their state-issued mattresses. The health risks that people take to provide for themselves the most basic of products are incalculable. From toxic shock, to infection, to infertility, it is a game of Russian roulette and not a price that anyone should have to pay.

I have seen women call their families and tell them not to come – I have seen women turn down visits from their attorneys when they are menstruating. Why? Because you are not allowed to have personal property when going on the visits. If you go to your visit, you are stripped naked and made to spread your butt cheeks, squat and cough. You strip and there is a bloody pad – afterwards no woman is going to want to put that back against her body. Once your visit is over, you would then have to walk back to your housing unit or job/school assignment and risk bleeding through your clothes. The humiliation of either situation is the very reality that plays out in our prisons and jails.

Incarcerated people deserve no less than dignity when it comes to managing a normal bodily function.  States and local jurisdictions must be required to provide essentials to those in their “care, custody and control.” Free and accessible access to menstrual products is simply something that must be provided. 

It is unfathomable to me that, in 2019, we even have to have this conversation and that sadly we must use legislation to ensure that those we incarcerate have what they need, in the quantity they need and that no one has to make their own tampons.

We passed Menstrual Equity legislation in Maryland in 2018 and it went into effect on October 1^st of that year. One year later, we still have problems. People are still not getting what they need; they still receive subpar products that they are forced to make into usable ones. Worse, when good legislation is passed, resentful leadership too often weaponizes it, replacing the quality products in the commissary with the subpar ones being given freely to incarcerated people. We need to start thinking about what happens to people incarcerated in women’s facilities and demand action and accountability.

I am now the Coalition Coordinator for Reproductive Justice Inside, and I no longer accept being a “tampon queen” – now I am the “tampon bitch” as I continue to fight for menstrual equity and dignity for all.

Kimberly Haven, Coalition Coordinator, Reproductive Justice Inside, NARAL Pro-Choice Maryland