Elie Peltz, CLS ’21
In recent years, searches of electronic devices have skyrocketed at the border, nearly quadrupling.[1] In response to litigation filed by the ACLU of Massachusetts and the Electronic Frontier Foundation (EFF), the United States District Court for the District of Massachusetts recently issued a ruling on November 12th stating that arbitrary searches of international travelers’ devices at airports and U.S. ports of entry violate the Fourth Amendment.
The ACLU and EFF brought the lawsuit on behalf of eleven travelers whose electronic devices had been searched at border crossings and airports. During the court proceedings, an attorney for Customs and Border Protection (CBP) stated that the agency had searched 30,200 electronic devices in 2018, a 60% increase from the previous year. [2] It was also revealed that CBP and Immigration and Customs Enforcement (ICE) permitted searches of travelers’ devices for matters beyond the scope of customs and immigration enforcement.[3] The agency explained that searches can include downloading material from a laptop to looking at pictures on a camera memory card.[4]
Judge Denise Casper’s summary judgment ruling held that in order to comply with the Fourth Amendment, agents with ICE and CPB must show reasonable suspicion that a device includes illegal contraband before initiating a search.[5] In addressing the privacy interests of travelers, Judge Casper underscored the heightened concern attached to searches of digital devices. She wrote that “the potential level of intrusion from a search of a person’s electronic devices simply has no easy comparison to non-digital searches.”[6] The ruling relied on previous Supreme Court and circuit decisions that have made clear that older Fourth Amendment principles applied to non-digital contexts cannot be applied carte blanche to digital searches.[7] These decisions have established that digital devices contain a wealth of personal information not accessible through searches of most non-digital items.
Plaintiffs had sought a heightened privacy standard mandating warrants justified by probable cause. Instead, Casper opted to institute a lower reasonable suspicion standard given the government’s interest in “territorial integrity” and travelers’ reduced expectation of privacy when crossing the border. [8] Casper also ruled against a motion requesting that all information previously gathered from agency electronic device searches at the border be expunged. Granting the motion would be superfluous, asserted Casper, given that the government will have to demonstrate reasonable suspicion to legitimize use of that data in the future. [9]
Casper found that both “basic” and “advanced” searches conducted by the agency violate the Fourth Amendment, and ruled that both kinds of searches will require reasonable suspicion of illegal material moving forward.[10] “Advanced” searches, as defined by CPB, occur when an officer uses external equipment through a wired or wireless connection to an electronic device to review or a copy the contents on the device. All other searches are classified as “basic.”[11] Additionally, Casper’s decision applies to both U.S. persons as well as foreign visitors.[12]
Plaintiffs hailed the ruling as a “historic opinion.”[13] The government has until January to appeal Casper’s ruling.[14]
[1] Hugh Handeyside, et al., Federal Court Rules That Border Officers Can’t Arbitrarily Search Our Electronic Devices, ACLU, (November 13, 2019) https://www.aclu.org/news/immigrants-rights/federal-court-rules-that-border-patrol-cant-arbitrarily-search-our-electronic-devices/.
[2] Zack Huffman, Judge Says Feds Need Reasons for Border Tech Searches, Courthouse News Service, (November 12, 2019) https://www.courthousenews.com/judge-says-feds-need-reasons-for-border-tech-searches/.
[3] Id.
[4] Id.
[5] Alasaad v. Nielsen, 2019 WL 5899371 (D. Mass. Nov. 12, 2019).
[6] Id. at *12.
[7] See e.g. Riley v. California, 573 U.S. 373, 393 (2014) (noting that cell phones are “minicomputers that also happen to have the capacity to be used as a telephone”); United States v. Cotterman, 709 F.3d 952, 964 (9th Cir. 2013).
[8] Alasaad, 2019 WL at *8.
[9] Zack Huffman, Judge Says Feds Need Reasons for Border Tech Searches, Courthouse News Service, (November 12, 2019) https://www.courthousenews.com/judge-says-feds-need-reasons-for-border-tech-searches/.
[10] Id. at *14.
[11] Id. at *2.
[12] Sophia Cope , et al., Federal Judge Issues Historic Opinion for Digital Privacy at the Border, Electronic Frontier Foundation, (November 15, 2019) https://www.eff.org/deeplinks/2019/11/federal-judge-issues-historic-opinion-digital-privacy-border.
[13] Sophia Cope, et al., Federal Judge Issues Historic Opinion for Digital Privacy at the Border, Electronic Frontier Foundation, (November 15, 2019) https://www.eff.org/deeplinks/2019/11/federal-judge-issues-historic-opinion-digital-privacy-border.
[14] Alaina Lancaster, ICE and CBP Searches Violate Fourth Amendment, Judge Rules, LAW.COM, (November 20, 2019) https://www.law.com/2019/11/20/whats-next-the-fourth-amendment-at-the-border-and-beyond-meeting-hackers-in-the-middle-what-to-watch-in-google-v-oracle/.