Early in 2018, Business Law Today published an article of mine dealing with the legal ethics implications of border search policies of the Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) relating to portable electronic devices. The article adverted to a then-recently filed lawsuit in federal court in Boston challenging the validity of these policies as a general proposition (i.e., not related to any issues of professional ethics). Nominally brought on behalf of 11 travelers whose smartphones and other electronic devices were searched without a warrant at the U.S. border, the case was funded by the ACLU, the Electronic Frontier Foundation, and the ACLU of Massachusetts.
The case was originally styled Alasaad v. Duke because the initial suit was filed against Elaine Duke, then acting secretary of DHS. Summary judgment was granted late in 2019 for the plaintiffs under the case name Alasaad v. Nielsen (because Kirstjen M. Nielsen had been substituted as secretary of Homeland Security (until earlier this year) pursuant to Fed. R. Civ. P. 25(d)).
Bear in mind that we are talking here about forensic searches of electronic devices, not the less intrusive manual searches. The latter have previously been upheld by federal appellate decisions in the 4th Circuit and the 9th Circuit. Alasaad is the first case to consider the question with regard to forensic searches.
Prior to summary judgment, the court denied the government’s motion to dismiss and in the process made several critical rulings about how the Constitution protects digital privacy and free speech at the border. The district court relied heavily on the Supreme Court’s 2014 decision in Riley v. California, which balanced the privacy interests in cell phones against the government’s interest in conducting warrantless searches incident to arrest, to wit: officer safety and preservation of evidence. Riley held that the Fourth Amendment requires police officers to get a warrant before searching an arrestee’s cell phones.
Privacy at the border, however, presents more difficult questions. The Fourth Amendment to the U.S. Constitution protects “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Nevertheless, border searches of international travelers are a well-settled exception. It implicates the sovereign’s right to control who and what may enter the country and is justifiable from a number of different perspectives, including territorial integrity, national security, and interdiction of criminal conduct ranging from contraband to terrorism. The U.S. border is not a Constitution-free zone, however, and those sovereign interests must be balanced against individual rights, including the right to privacy.
On the privacy side of the balance, the Alasaad court explained that “electronic devices implicate privacy interests in a fundamentally different manner than searches of typical containers or even searches of a person.” U.S. District Court Judge Denise Casper quoted from the Riley decision extensively:
- “The sum of an individual’s private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions . . .”
- A person’s internet browsing history, historic location information, and mobile application software (or “apps”) “can form a revealing montage of the user’s life.”
- “[A] cell phone search would typically expose to the government far more than the most exhaustive search of a house.”
Warrantless searches of a “particular category of effects” such as cell phones must be sufficiently “tethered” to the government’s interests, the Alasaad court concluded. At the border, the government’s interests in conducting warrantless searches are to collect duties and to prevent the entry of contraband and other harmful items. The key inquiry became whether warrantless searches of electronic devices sufficiently advance these interests. Agreeing with plaintiffs that there is an important difference between border officers conducting warrantless searches for “contraband” (where tethering is stronger), as opposed to conducting warrantless searches for “evidence” of contraband or other unlawful activity (where tethering is weaker), the court found unpersuasive the government’s claim that child pornography is a form of digital contraband that justifies warrantless searches of electronic devices.
The court then emphasized that border searches of electronic devices burden travelers’ First Amendment rights to free speech and association by exposing membership in organizations, unmasking anonymous speech, and intruding on freedom of the press. In light of these substantial First Amendment interests, the court held the government must prove a “substantial relation between the governmental interest and the information required to be disclosed.”
The court thus denied the motion to dismiss but left open the issue of the appropriate level of individualized suspicion a border officer must have before searching an electronic device: “reasonable suspicion” or a warrant based on probable cause. Resolution of this question had to await summary judgment.
In her November 2019 summary judgment opinion, Judge Casper held that border agents must have “reasonable suspicion” that a device contains digital contraband before searching or seizing the device. The traditional border search exception to the warrant requirement applies only to routine searches, but searches of personal electronic devices are nonroutine given the magnitude of the privacy and First Amendment interests at stake. The “reasonable suspicion” standard is a common-sense approach, the court held, and is met when border agents can point to specific, articulable facts—more than just a hunch—and the inferences reasonably to be drawn therefrom, suggesting that the device contains contraband.