Fourth Amendment

Judge Rules Feds Need Reasonable Suspicion Before Searching Tech Devices at the Border

Fourth Amendment protections against warrantless searches are reduced when entering the country, but they’re not completely erased.

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Border agents who seize and search people's tech devices at entry points to the United States without any suspicion of criminal activity are violating Fourth Amendment rights, a federal judge ruled this week in a case likely headed to the Supreme Court.

The American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF) sued in 2017 on behalf of 11 travelers—10 American citizens and one permanent resident—who had been ordered by Department of Homeland Security officials to let them review and copy the contents of their devices without any sort of warrant or explanation of what agents were looking for.

Customs and Border Patrol (CBP) and Immigration and Customs Enforcement (ICE) officials have long been arguing the authority for these warrantless searches on the basis of the so-called "border search exception." Courts have traditionally ruled that America's sovereign interest in controlling what and who it allows to enter its borders permits officials to search people and property coming into the country (or within 100 miles of a border) without needing a warrant or any sort of suspicion.

While this has historically been a mechanism for fighting smuggling, in a post-9/11 era it has been escalated into a demand to search people's technology and access their files and contents. Each year, CBP searches tens of thousands of devices of people crossing the border.

The ACLU and EFF have been fighting these violations of privacy, and lawmakers like Sens. Rand Paul (R–Ky.) and Ron Wyden (D–Ore.) have been proposing legislation to mandate warrants for tech searches.

In a 48-page decision in Alasaad v. McAleenan handed down Tuesday, Judge Denise J. Casper of the U.S. District Court of Massachusetts ruled that there are limits to the extent that officials can engage in warrantless, suspicionless border searches, and these intrusive tech searches cross the line, violating the Fourth Amendment rights of the plaintiffs. While it's true Americans should expect less privacy at the border, it doesn't mean they have absolutely none.

In the ruling, Casper notes that, unlike border searches of property and vehicles looking for contraband people might be trying to smuggle into the country, these tech searches are typically about accessing data that officials argue may alert them to criminal activity. But that's similarly true of the data of tech devices once they're inside the country, and police still need to get warrants to search them. Casper notes that DHS is defending these searches by claiming they might catch contraband like child pornography, but DHS did not provide data as to how frequently such contraband is found during random searches (thus Casper could not perform any sort of privacy balancing test). According to her ruling, DHS has supplied that they've uncovered 34 cases of "digital contraband" via tech border searches. But they've performed more than 100,000 searches of tech devices between 2012 and 2018. Those aren't terribly good numbers to justify mass, intrusive violations of people's personal information.

Casper further notes, on a more technical level, that these tech searches are not "routine" because of the exceptionally intrusive nature of looking through a person's phone or laptop, compared to searching somebody's luggage or vehicle. Some of the data officials accessed through the plaintiffs' tech devices included confidential communications with attorneys, email and text message histories, and troves of deeply personal information. Some plaintiffs' devices were seized and kept for weeks before they were returned—after border officials had copied the contents of the files into their own systems.

Casper writes in her ruling that the Supreme Court decision in Riley v. California is "particularly instructive." In that 2014 case, the Supreme Court ruled unanimously that police need to get a search warrant to look through the contents of the cell phone of a person they've arrested. DHS does not want that ruling to extend to border tech searches, which is why they're leaning so heavily on the border exception. The Riley ruling rejected the idea that a search of a phone is no different from a search of a person's body and possessions when they're arrested. Similarly, Casper is rejecting the idea that searching a phone at the border is no different from looking through somebody's luggage for drugs.

In the end, Casper denies the plaintiffs' request to force the feds to expunge all the data they've collected from their tech devices. But she does declare that the current guidelines for border tech searches by CBP and ICE violate the Fourth Amendment rights of the plaintiffs because the guidelines require no reasonable suspicion that the devices contain contraband to justify extensive searches and seizing the devices and copying of the contents. But she stops short of putting in place an actual injunction prohibiting the feds from continuing these searches while DHS considers its options.

It seems obvious that this case will be fought all the way to the Supreme Court. For now, the ACLU and EFF are celebrating the ruling. The two organizations put out a joint statement:

"This ruling significantly advances Fourth Amendment protections for the 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."

"This is a great day for travelers who now can cross the international border without fear that the government will, in the absence of any suspicion, ransack the extraordinarily sensitive information we all carry in our electronic devices," said Sophia Cope, EFF senior staff attorney.

Read the ruling here.

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  1. In a 48-page decision in Alasaad v. McAleenan handed down Tuesday, Judge Denise J. Casper of the U.S. District Court of Massachusetts ruled that there are limits to the extent that officials can engage in warrantless, suspicionless border searches, and these intrusive tech searches cross the line, violating the Fourth Amendment rights of the plaintiffs. While it’s true Americans should expect less privacy at the border, it doesn’t mean they have absolutely none.

    I know people get after me for this, but I still haven’t heard a cogent argument as to why it’s legal for border agents to literally dismantle my car at the border, sans warrant, but need a warrant to simply peek the contents of my cell phone.

    I hope the petitioners win this case, really I do. It’s not that I want the BP to be able to search my phone, it’s that I don’t see the magical separation between my suitcase, the trunk of my car, my pockets, my anus, and quite literally dismantle the car before my very fourth amendment-deprived eyes completely sans warrant and my totes off-limits cell phone.

    If the SCOTUS rules in favor of the petitioners, I’m going to be very interested in watching them twist themselves into knots explaining why this one thing is off limits when pretty much everything else isn’t.

    Your vehicle may be subjected to radiation detection, a dog may sniff your car, and an officer may also look around your vehicle or knock on your vehicle to check for hidden contraband or compartments.

    The officer at primary inspection may send a vehicle to secondary inspection for a more thorough search. Legally, the officer does not need to prove that he/she had any type of suspicion of unlawful conduct when referring the car to secondary. In secondary, the officers can perform an intrusive search of your vehicle, including dismantling the gas tank, doors etc. and have no legal obligation to establish that there was any reasonable suspicion that the car contained contraband and regardless of the level of inconvenience or delay it may cause to you.

    One of the few limitations against suspicionless searches is against those that would cause some type of permanent damage to the vehicle, like drilling holes. Here, an officer could be required to show that their actions were reasonable, but still, the bar is quite low.

    1. don’t see the magical separation between my suitcase, the trunk of my car, my pockets, my anus

      Yeah, we heard that about you.

        1. It must be awful uncomfortable not having any separation between your suitcase, the trunk of your car, your pockets and your anus.

          How on Earth do you manage to drive like that?

      1. One fun thing to do if you expect to have your luggage searched at the airport is to fill it with kinky sex toys. Then while the customs agent is searching it make suggestive facial gestures the entire time. They love that. It is especially effective if you are the same sex.

    2. The only distinction I can think of is that searching your car or body or baggage can yield contraband that needs to be physically smuggled over the border.
      Some information could be contraband, I suppose. But the internet and encryption exist, so good luck with that.

      1. Information can absolutely be contraband.

        1. That’s what the de oceans contend about the ‘whistleblower’ in the impeachment proceedings.

        2. That’s debatable, but it’s also irrelevant. Information does not need to be physically smuggled, indeed the vast majority will be sent over the internet. Thus the BP does not have a vested interest in searching for it. I mean, even they admit this is primarily about finding evidence of criminal wrongdoing, not digital contraband.

    3. I know people get after me for this, but I still haven’t heard a cogent argument as to why it’s legal for border agents to literally dismantle my car at the border, sans warrant, but need a warrant to simply peek the contents of my cell phone.

      Possibly controversial follow up: they can absolutely peek all they want. But they should never be able to compel the production of a passcode, so they will be peeking at ciphertext.

    4. I agree – if cell phones are off limits without a warrant, then why not everything else?

      1. It’s funny, as hard as I read the Constitution, I can never quite find that “border exception”.

    5. The 4th amendment language is quite specific. The protection is against “unreasonable” searches. The Government has made the case that searches of physical property and the physical individual at the border are reasonable in light of what contraband and other illegal activities have occurred. Thus warrants are not necessarily required for patdowns and car searches for example. They are considered reasonable at the border.

      The question is whether the reasonableness of the physical person location searches extends to non-physical technology device searches at border crossings. I would tend to agree with the restriction to get a warrant without reasonable suspicion outside of the fact that the person(s) are crossing the border.

    6. It’s the difference between physical things and information. The government has an interest in making sure certain things stay out of the country (or at least that those things flow through proper channels so they can tax them). But the information on your phone could just as easily pass through the border via the internet and the government isn’t supposed to be blocking information anyway. So they’re basically just snooping on people because they can. I’d say the same thing about a suitcase full of papers. Once the agents realize the suitcase isn’t contraband they should close it and move on. The 4th amendment exception at the border should be limited to what it takes for customs agents to do their job. It shouldn’t be a way to dig up dirt on people.

  2. Excellent news!

    Now we just need another case ruling that 100 miles inland is not “the border”.

    1. Well, first we need the SCOTUS to agree with this one lonely Federal Judge.

      1. A man can dream, though.

    2. And 100 miles around any international airport.

      1. And 100 miles around any River that is navigable. Few know this but all of Sacramento plus surrounding towns are within that range due to its inland port

  3. Casper further notes, on a more technical level, that these tech searches are not “routine” because of the exceptionally intrusive nature of looking through a person’s phone or laptop, compared to searching somebody’s luggage or vehicle.

    Ok, that’s . . . that is a really bad argument. Looking through my luggage (or vehicle) *is* incredibly intrusive. Its only considered ‘reasonable’ because the government has gotten away with it for so long that its now ‘normal’.

    This illustrates a problem with allowing (or disallowing) things based on how common they are. AR-15’s shouldn’t be allowed because they’re a commonly used rifle – they should be allowed even if there were only one single person in the world that ever had one. Same with searches. A search is not reasonable or ‘unintrusive’ because its commonly done.

    1. Can’t agree with this more. We decided cavity searches at the border didn’t require a warrant, no suddenly we want to put on the brakes because someone from the ACLU doesn’t want a BP agent to see his dick pics*.

      *I know I’m being flip, but seriously, the BP can literally dismantle your car without articulating any reasonable suspicion, let alone requiring a warrant. I’d love to see the SCOTUS hold the line here, really I would. Because maybe it can be used as a precedent to push back on everything else. But I’m not holding my breath.

  4. Similarly, Casper is rejecting the idea that searching a phone at the border is no different from looking through somebody’s luggage for drugs.

    I don’t understand how it isn’t.

    1. You and me both, brother, yet many people have seemed to insinuate it is. Because…r… reasons.

  5. No longer will they get away with searching your phone based on any old lie, they’ll have to think up a plausible lie. Still would like to see the data on phone searches categorized by “likelihood of having hot nude photos”.

  6. In the end, Casper denies the plaintiffs’ request to force the feds to expunge all the data they’ve collected from their tech devices. But she does declare that the current guidelines for border tech searches by CBP and ICE violate the Fourth Amendment rights of the plaintiffs because the guidelines require no reasonable suspicion that the devices contain contraband to justify extensive searches and seizing the devices and copying of the contents. But she stops short of putting in place an actual injunction prohibiting the feds from continuing these searches while DHS considers its options.

    In the end, the case isn’t even punted.

    No requirement to expunge the data collected, no injunction – means the DHS walks free for another decade to continue this until the USSC gets up and tells everyone that ‘yeah’, its the Border Exception, stupid.

  7. This is an easy one. When crossing the border with a crowd of people such as from an airplane, you don’t have to be completely suspicionless– You just have to be not the most suspicious. All you have to do is strike up a conversation with the CBP agent and casually let it drop that you think the guy behind you might have something to hide, as he asked you about VPNs and the BitCoins.

    Works every time.

  8. While it’s true Americans should expect less privacy at the border…

    I DISAGREE.

    1. I agree with your disagreement.

      The whole American experiment is based on an assumption of fundamental, individual integrity. You can’t start making this exception and that exception without the whole fabric being quickly torn to shreds. Identification and searches are for crumbling empires, not free republics.

  9. Interesting to see how the appellate courts handle this issue. We have made invasive searches of person and property the standard in so many ways. Not saying I agree with that, but I see no plausible distinction between searching my person/car/bags at airports and other ports of entry and searching a phone for the same purpose.

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