First Circuit Rejects Device Search Challenge, Says The Fourth Amendment Doesn't Apply At Our Nation's Borders
from the we-can't-see-how-we-can-accommodate-both-you-and-the-gov't-so-gov't dept
US borders continue to be lawless places. Not because there’s more criminal activity there, but because the Constitution that protects us away from borders (and international airports, etc.) barely applies at all within 100 miles of them.
The First Circuit Court of Appeals is the latest appeals court to decide borders and constitutional protections don’t mix. A lawsuit over warrantless, suspicionless device searches has been rejected, with the court finding in favor of the government.
This deepens the split between circuits and their interpretation of the Constitution’s effectiveness within 100 miles of the border. The Ninth Circuit said device searches must be limited to searches for contraband. In that case, the government couldn’t show evidence of drug dealing would be found on the suspect’s phone. The court said the government couldn’t use the border search warrant exception to engage in fishing expeditions for other criminal evidence.
The Fourth Circuit also limited border searches, but only required the government to show reasonable suspicion before engaging in a forensic examination of people’s phones. Not great, but better than the “this is fine” rulings handed down by the Eleventh Circuit in 2018 and this one [PDF] from the First, handed down last week.
The case handled by the First Circuit is an anomaly. It deals with a civil lawsuit brought by several plaintiffs demanding an injunction blocking the government from engaging in suspicionless device searches. Everything else handled so far by Appeals Courts has arisen from criminal cases with defendants challenging evidence obtained by warrantless (and, in some cases, suspicionless) device searches.
The First Circuit rejects the district court’s finding that border officers must have something more than “because we feel like it” to engage in phone searches. It says the Riley decision doesn’t apply, even if it’s a search incident to an arrest, because the border search exception means no border control officer should ever have to obtain a warrant.
According to the Appeals Court, a warrant requirement would just make things difficult for the government.
[G]iven the volume of travelers passing through our nation’s borders, warrantless electronic device searches are essential to the border search exception’s purpose of ensuring that the executive branch can adequately protect the border. […] A warrant requirement — and the delays it would incur — would hamstring the agencies’ efforts to prevent border-related crime and protect this country from national security threats.
And “basic” searches — ones that “only” access all unencrypted data resident on the device — don’t need to be supported by reasonable suspicion. According to the court, this is fine because the government simply doesn’t have enough time or manpower to trawl through every phone that happens to cross a border.
Basic border searches also require an officer to manually traverse the contents of the traveler’s electronic device, limiting in practice the quantity of information available during a basic search. The CBP Policy only allows searches of data resident on the device. CBP Policy at 4. And a basic border search does not allow government officials to view deleted or encrypted files. We thus agree with the holdings of the Ninth and Eleventh circuits that basic border searches are routine searches and need not be supported by reasonable suspicion.
And the First Circuit rejects the Ninth Circuit’s narrowing of the scope of border device searches.
We cannot agree with its narrow view of the border search exception because Cano fails to appreciate the full range of justifications for the border search exception beyond the prevention of contraband itself entering the country. Advanced border searches of electronic devices may be used to search for contraband, evidence of contraband, or for evidence of activity in violation of the laws enforced or administered by CBP or ICE.
The border search business will continue as usual in the First Circuit. And the court unhelpfully suggests plaintiffs stop bothering the courts with their constitutional concerns and ask Congress to change to legal contours of device searches. While legislative efforts have been made to create a warrant requirement, it was the US Supreme Court that created the first warrant requirement for phone searches. Congress had nothing to do with one the biggest Fourth Amendment alterations and it’s unlikely many current legislators are ready or willing to alter the terms of constitutional engagement at our nation’s borders. This isn’t even a punt by the First Circuit. It’s a shrug that says it’s unwilling to honestly consider the privacy impact of hundreds of thousands of suspicionless device searches and would rather have someone else tell it how to think.