A ‘constitutional loophole': How phone inspections test US civil rights

Al Jazeera

30-04-2025

Dearborn, Michigan – Travelling is a normal part of life for Michigan lawyer Amir Makled. As recently as December, he went overseas and returned home to the United States without any issues.
'I've been out of the country at least 20 times. I've been all over Europe. I go to Lebanon every year,' he said.
But returning this month to the Detroit Metro Airport was a very different experience.
He and his family had just come home from a spring-break holiday in the Dominican Republic when they reached a customs checkpoint.
'The agent looked over at me and then looked to another agent and asked him if the TTRT agents are here. I didn't know what this meant.'
He googled the acronym. It stands for Tactical Terrorist Response Teams.
'As an Arab American and as a Muslim American, whenever I'm travelling, even if I'm driving in from Canada, I feel some sort of anxiety about it, that I'm going to be randomly selected to be stopped or profiled,' he explained.
'When he said those words, I thought: 'OK, I'm going to be profiled here.''
Sure enough, Makled and his family were asked to go to another room.
Since Makled is a US citizen, born in Detroit, Michigan, he knew that he couldn't be denied entry into the country. He urged his wife and kids to pass through the checkpoint without him.
'I knew my rights at the border in that regard. And I was also familiar with the extent of border searches,' he said. 'This is the first time I've ever been stopped.'
But what happened next would put the lawyer in a precarious position.
Border control agents have considerable legal rights to search a person's belongings. The idea is to prevent security hazards, contraband or environmental threats from entering the country.
Those searches, however, extend to the contents of electronic devices. And that raises questions about what material needs to be regulated — and what needs to be protected from the prying eyes of the government.
Makled knew the border agents could take his phone. But as a lawyer, he faced a thorny ethical dilemma. His phone contained privileged attorney-client information.
In the US, a basic tenet of the legal system is that a client can have frank discussions with their lawyer, with the safety of knowing anything they say will be kept confidential.
A substantial amount of Makled's work was on his phone. When asked to hand it over, he told the border officers he couldn't give them the device.
'All my emails, my text messages, my files, the cloud-based software I use for my office,' he said, 'it's all through my phone.'
As a civil rights and criminal defence lawyer, Makled represents people he said are particularly vulnerable.
One of his clients is a protester who was arrested at a pro-Palestine encampment at the University of Michigan last year. She was later charged with resisting and obstructing police, a felony that carries up to a two-year prison sentence.
Makled believes he was targeted because the border officers knew this information. One of the agents, he said, even called him a 'famous lawyer', a comment he took to be a reference to the protester's case.
In the end, he gave the agents written permission to see his contacts but no other permissions. After about 90 minutes at the airport, he was allowed to leave with his phone.
For nearly a century, Title 19 of the US code has allowed border control officers the right to search any person entering the country, their luggage or other items in their possession at the time of the inspection.
But digital devices today contain far more information than is relevant to a person's trip.
The most recent fiscal year saw 47,047 electronic devices searched by border control officers, the vast majority of which belonged to non-US citizens.
That's a nearly 13 percent increase over the previous fiscal year in 2023, when US Customs and Border Protection clocked 41,767 electronic searches.
The question of whether these searches can be manipulated for political gain or reprisals has long dogged the process.
In November 2018, for instance, an employee of the tech company Apple, Andreas Gal, said he was detained while returning to San Francisco from an international trip.
Like Makled, Gal was flagged for the TTRT. And like the lawyer, customs officers pushed to search his electronic devices. He refused. Gal later said he believed he was targeted in response to the political views he expressed online.
But in recent weeks, experts fear the threat of such searches has risen.
Since taking office for a second term in January, President Donald Trump has sought to deport noncitizens he sees as critical of the US or its ally Israel. Material from electronic devices has been among the evidence allegedly used to expel people from the country.
For example, kidney transplant specialist Rasha Alawieh had been denied re-entry after flying back to the US from her native Lebanon. She held a valid H-1B visa that allowed her to work in the US.
News reports indicate that the Trump administration cited photos recovered from her phone as motivation for expelling her, including images she had of Hezbollah leader Hassan Nasrallah.
'Glorifying and supporting terrorists who kill Americans is grounds for visa issuance to be denied,' the Department of Homeland Security wrote in a statement after Alawieh's expulsion.
Also in March, the French government said one of its citizens, a scientist, was prevented from entering the US on account of the political messages on his phone.
The Trump administration has denied that accusation, however.
'The French researcher in question was in possession of confidential information on his electronic device from Los Alamos National Laboratory — in violation of a non-disclosure agreement,' Homeland Security spokesperson Tricia McLaughlin wrote on social media.
'Any claim that his removal was based on political beliefs is blatantly false.'
There are two types of screenings a device may undergo while in border control custody.
A 'light' search happens when an officer looks through an electronic device by hand. An advanced search, which legally requires 'reasonable suspicion' of a crime, involves the device being connected to external equipment. The device may not be returned to its owner for weeks or months.
Border agents do not need a warrant to search an electronic device, although US citizens are not obligated to unlock their electronics in order to re-enter their country.
However, for travellers who are not US citizens or permanent residents, refusing to share these details could result in being denied entry.
But experts say these practices raise serious concerns about the Fourth Amendment of the US Constitution, which grants protection from unreasonable searches and seizures by the government.
Esha Bhandari, the deputy director of the American Civil Liberties Union's Speech, Privacy and Technology Project, explained she has seen examples of the government using these border checks to bypass Fourth Amendment protections.
'The government is increasingly treating this as a constitutional loophole,' Bhandari said.
'They have someone under investigation, and rather than waiting on whether they can establish probable cause, which requires a judge to give a warrant, they wait until someone crosses the international border and treat that as a convenient opportunity to search their devices.'
But just how far that loophole can stretch is a matter of debate.
Saira Hussain, a senior staff attorney at the Electronic Frontier Foundation, said the courts in the US have yet to reach a consensus about just how far searches of digital devices can go — and what the limits are.
'At this moment, whether you fly into San Francisco vs Boston vs Atlanta, there are three different rulings on exactly which part of your phone can be searched, for what purposes [or] what level of suspicion is needed,' Hussain said. 'A number of lower courts have ruled on the issue, [but] there has not been uniformity.'
For his part, Makled said he has not been deterred from travelling — or representing controversial causes.
'I feel that this is an intimidation tactic. It's an attempt to dissuade me from taking on these types of cases,' he said, referring to his defence of the protester arrested at the University of Michigan.
'I say I won't be dissuaded. I'm going to continue to do what I believe.'