December 9, 2019

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Privacy at the Border: Reasonable Suspicion Required to Search Electronic Devices

While you still need to take extra precautions for privacy when entering or leaving the U.S., it seems that border agents no longer have complete discretion to search your phone and computer. In a change to effective search policy, border agents need to establish reasons for suspicion of your unlawful intent before insisting to search your electronics.

In a November 12, 2019 opinion, a Massachusetts District Court Judge held that for border officials to be authorized to search electronic devices of international travelers, there must be a reasonable suspicion that the traveler is carrying some sort of contraband on a smartphone or laptop.  (Alasaad v. Nielsen, No. 17-cv-11730-DJC, 2019 U.S. Dist. Lexis 195556)

Privacy at the border is a contentious issue.  The Fourth Amendment of 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.”  But one of the well-settled exceptions to the Fourth Amendment protection for unreasonable searches and seizures are border searches to international travelers.  As the Court noted, “the border search exception is grounded in the recognized right of the sovereign to control, subject to substantive limitations imposed by the Constitution, who and what may enter the country” because it “serves the nation’s paramount interest in protecting its territorial integrity.”

Back in 2017, the American Civil Liberties Union (“ACLU”) sued the heads of the Department of Homeland Security (“DHS”), U.S. Customs and Border Protection and the U.S. Immigration and Customs Enforcement (“ICE”) on behalf of 11 travelers, for searching their electronic devices and, in some cases, confiscating them, at ports of entry to the United States.  This case raised the question whether the border exception to the Fourth Amendment includes searches of smartphones or laptops that are performed by CBP officers at international ports, pursuant to currently effective CBP policies.

The facts of the case are that each of the eleven Plaintiffs (ten of which are U.S. citizens and one was a lawful permanent resident) had their electronic devices searched at least once at a U.S. airport after each of the Plaintiff’s returned to the U.S. on an international flight.  The challenged actions included searches of smartphones, either locked or unlocked, and in some cases laptops.

Some of the information the border officers accessed and retained in the searches included, among others, photographs, emails containing attorney-client communications, information about one plaintiff’s journalistic work information, and even in one case it went as far as attempting to extract data from the phone’s SIM card, and attempting to image the information contained in the laptop using a software to copy all of the device’s data.

Plaintiffs challenged the constitutionality of these searches, claiming that the CBP and ICE policies that allow for border searches of electronic devices without a warrant violate their Fourth Amendment’s protection against unreasonable searches and seizures.  Defendants, for its part, relied on the border exception to defend their policies and searches, and argued that no warrant is required.

Analyzing this case, the Federal Court in Boston found that “what the border search exception recognizes, rather than a limitless ability to conduct searches in connection with international travel, is that individuals have a reduced expectation of privacy at the international border” that should be balanced with the governmental interests.

Therefore, while acknowledging the federal government’s compelling interest in border security, U.S. District Judge J. Casper found that electronic device searches are fundamentally different than searches of other belongings. For doing so, Judge Casper relied on the 2014 U.S. Supreme Court ruling in Riley v. California (Riley v. California, 573 U.S. 373, 2014 U.S. Lexis 648), which also established that electronic devices are fundamentally different from other belongings and physical containers, because they can carry vast amounts of highly personal information.  The Court recognized that “the potential level of intrusion from a search of a person’s electronic devices simply has no easy comparison to non-digital searches.”

The ruling, however, did not go so far as to require warrants for border device searches, but concluded that the border search exception to the Fourth Amendment does not give CBP officers an unfettered ability to search electronic devices: reasonable suspicion of contraband is required.

But this is not, by far, the only or last issue on privacy rights at the U.S. border.  Just as an example, earlier this month the Electronic Frontier Foundation sued the DHS in the Northern District Court of California requesting to expedite a FOIA request to provide data and records regarding the U.S. government’s use of a fast-acting DNA testing on migrant families at the borders.  These types of tests raise questions regarding these privacy-invasive technologies, and whether they are a violation of privacy rights.

Copyright © 2019 Womble Bond Dickinson (US) LLP All Rights Reserved.

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About this Author

Ernesto Mendieta Telecom Attorney
Associate

Ernesto Mendieta is an experienced bilingual attorney with a history of helping international clients resolve complex matters.  

Ernesto began his career in Mexico as an associate at one of the world’s largest law firms, before specializing in telecommunications law at Mexico’s preeminent telecommunication boutique firm. In that capacity, Ernesto worked with competitive carriers entering the Mexican telecommunications market on all aspects of regulatory compliance and corporate formation. He helped several U.S. companies start operations in Mexico as ISPs, MVNOs, resellers and e-...

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