Suspicionless border searches of digital devices ruled unconstitutional

A federal court has ruled that suspicionless searches of travelers’ electronic devices by federal agents at airports and other U.S. ports of entry are unconstitutional.

The November 12 ruling came in a lawsuit, Alasaad v. McAleenan, filed by the American Civil Liberties Union (ACLU), Electronic Frontier Foundation (EFF) and ACLU of Massachusetts on behalf of 11 travelers whose smartphones and laptops were searched without individualized suspicion at U.S. ports of entry.

The plaintiffs were 10 U.S. citizens and one lawful permanent resident who came from across the country and a variety of backgrounds. The defendants were the leaders of the Department of Homeland Security and two of its component agencies, Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE). The case was filed in U.S. district court in Boston, Massachusetts.

In a 48-page memorandum and order, U.S. district judge Denise Casper ruled that under the Fourth Amendment of the U.S. Constitution, “reasonable suspicion” is required when federal agents conduct border searches of electronic devices.

“Although governmental interests are paramount at the border, where such non-cursory searches – even ‘basic’ searches as broadly defined under CBP and ICE policies as well as the ‘advanced’ searches of plaintiffs’ electronic devices – amount to non-routine searches, they require reasonable suspicion that the devices contain contraband,” wrote the judge.

The judge said that reasonable suspicion requires “a showing of specific and articulable facts, considered with reasonable inferences drawn from those facts, that the electronic devices contain contraband.” The judge also ruled that the reasonable suspicion requirement applies whether a search of an electronic device is “basic” or “advanced.”

CBP defines an “advanced” search as “any search in which an officer connects external equipment, through a wired or wireless connection, to an electronic device, not merely to gain access to the device, but to review, copy and/or analyze its contents.” While CBP’s policies required “reasonable suspicion” for most advanced searches, they required no showing of cause for a basic search, defined by CBP as “any border search that is not an advanced search.”

The judge said that she was unable to discern a meaningful difference between the two classes of searches in terms of the privacy interests implicated. “Even a basic search alone may reveal a wealth of personal information,” she said. “Even a basic search allows for both a general perusal and a particularized search of a traveler’s personal data, images, files and even sensitive information.”

“In light of this record, case law, and in conjunction with the lack of meaningful difference between basic and advanced searches, the court concludes that agents and officials must have reasonable suspicion to conduct any search of entrants’ electronic devices under the ‘basic’ searches and ‘advanced’ searches as now defined by the CBP and ICE policies,” said the ruling. “This requirement reflects both the important privacy interests involved in searching electronic devices and the defendant’s governmental interests at the border.”

According to EFF, the number of border searches of electronic devices has been steadily growing. In 2017, CBP conducted 30,200 border searches, both inbound and outbound, of electronic devices, according to a CBP news release. The year before, 19,051 electronic device searches were conducted by CBP.

“This ruling significantly advances Fourth Amendment protections for millions of international travelers who enter the United States every year,” said Esha Bhandari, staff attorney with the ACLU’s Speech, Privacy and Technology Project. “By putting an end to the government’s ability to conduct suspicionless fishing expeditions, the court reaffirms that the border is not a lawless place and that we don’t lose our privacy rights when we travel.”