Federal Court Says ICE, CBP's Suspicionless Searches Of Electronic Devices Is Unconstitutional

from the warrant-requirement-in-our-lifetime? dept

There's a bit more Constitution in the "Constitution-free zone." A federal court in Massachusetts has ruled [PDF] border agents can no longer perform suspicionless device searches. This ruling aligns itself with the decision handed down by the Ninth Circuit Court of Appeals earlier this year. If the government wants to dig into travelers' phones and laptops without a warrant, it needs to show it believes contraband will be located on the seized device.

It's not quite a warrant requirement, which would align it with the Supreme Court's Riley decision. No court has been willing to apply this decision at the border, but requiring reasonable suspicion is a step in the right direction.

The lawsuit was filed by 11 travelers whose devices were seized and searched by CBP and ICE agents. For some of the plaintiffs -- represented by the ACLU -- this happened multiple times. The court provides a snapshot of the intrusions central to the group complaint.

Without recounting the nature and circumstances of all of the Plaintiffs’ searches, a sample of them is illustrative. Nadia Alasaad has twice had her iPhones searched at the border over her religious objections to having CBP officers, especially male officers, view photos of her and her daughters without their headscarves as required in public by their religious beliefs. During the second search, which was of her daughter’s phone, Alasaad alleges, and Defendants have not disputed, that a CBP officer mentioned a photograph that had been on Alasaad’s phone during her earlier search but was not present in the second search.

[Plaintiff Zainab] Merchant is the founder and editor of a media website and has had her phones searched multiple times despite her concerns about officers seeing pictures of her without her headscarf on the phones and, on one occasion, her declining to give consent to search her phone since it contained attorney-client communications. Merchant observed a CBP officer viewing communications between her and her lawyer. [Jeremie] Dupin’s phone contained information from his work as a journalist, while [Sidd] Bikkannavar’s phone was a work phone officially owned by NASA’s Jet Propulsion Laboratory, and containing information from his work there.

The government tried to get out of this lawsuit by claiming the plaintiffs couldn't show they had suffered harm or would continue to suffer harm if these agencies weren't prevented from performing suspicionless searches. The court says it really can't take the government's word for this because the government continued to search the plaintiffs' devices after this litigation commenced.

That such search of electronic devices continues for Plaintiffs, even in the midst of their ongoing legal challenges to same, serves as further, undisputed indication of the sufficient likelihood that, unremedied, such alleged harm will continue in the future, particularly given the Plaintiffs’ future plans for international travel.

The court agrees the government has a compelling interest to secure our borders. That's why there's no warrant requirement for device searches, despite the Riley decision. But, while the expectation of privacy may be reduced near the nation's borders, it doesn't disappear completely.

Agencies that patrol the borders are there to prevent illegal immigration and the transport of contraband into the country. That's where the line is drawn by this federal court: if the government wants to search someone's device, it needs to show it will find that contraband on the searched device. Searching for evidence of criminal activity simply isn't allowed -- not without a warrant.

Undisputedly, interdiction of inadmissible persons and goods are legitimate governmental interests at the border. Plaintiffs do not dispute that CBP and ICE officers have the unenviable task of screening “[o]ver one million travelers per day [who] go through U.S. ports of entry,” and although they have some information about travelers (particularly those traveling by air and otherwise through agency databases), they have little time to process it. Even so, the record that recites “searches of electronic devices at the border have successfully uncovered threats to national security, information pertaining to terrorism, illegal activities, contraband, and the inadmissibility of people and things,” without explanation of the frequency, nature of same or the manner of the discovery of same, is not a strong counterweight to the intrusion on personal privacy evidenced by such searches.

The court quotes from Riley to drive home the point about the privacy expectations of today's laptops, tablets, and cellphones -- all of which contain far more than the contents of a car trunk or luggage.

Defendants… point to the broad latitude border officials have to search physical items, but comparisons between searches for digital evidence or contraband and searches of other physical items or travelers themselves are inapposite. Riley recognized as much in responding to the government’s argument that officers could search a cell phone if there were a sufficiently similar non-digital analogue that officers could have searched by noting that “the fact that a search in the pre-digital era could have turned up a photograph or two in a wallet does not justify a search of thousands of photos in a digital gallery. The fact that someone could have tucked a paper bank statement in a pocket does not justify a search of every bank statement from the last five years.

[...]

Unlike a vehicle, vessel or even a home at the border, see 19 U.S.C. §§ 482, 1582, 1595(a)(2) (regarding inspections of vessels and homes), “the data stored on a cell phone is distinguished from physical records by quantity alone, [but] certain types of data are also qualitatively different.” It can “reveal an individual's private interests or concerns” as evidenced by internet search and browsing history, “reveal where a person has been” through historic location information, and reveal which files a person created, accessed and when he or she did so through metadata. The potential level of intrusion from a search of a person’s electronic devices simply has no easy comparison to non-digital searches.

The court says any search of a device beyond "a brief look reserved to determining whether the device is owned by the person carrying it across the border" requires reasonable suspicion. It does not give a free pass to "basic" searches (i.e.,non-forensic searches). As the court notes, CBP and ICE's definition of a "basic" search includes asking a person about their photos, emails, and contacts, asking one of the plaintiffs about their blog posts, and routinely removing the devices to perform "basic" device searches out of view of the plaintiffs. There's nothing "basic" about these searches and the government will need reasonable suspicion to engage in them in the future.

The court's ruling says ICE and CBP's border device search policies are unconstitutional as presently defined and deployed. Reasonable suspicion is the new standard for device searches in this jurisdiction.

Filed Under: 4th amendment, border searches, cbp, constitution free zone, device searches, reasonable suspicion, suspicionless searches


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  • icon
    That One Guy (profile), 14 Nov 2019 @ 1:32am

    Congrats, you're almost to where you should have started

    The court's ruling says ICE and CBP's border device search policies are unconstitutional as presently defined and deployed. Reasonable suspicion is the new standard for device searches in this jurisdiction.

    If only there was some previously existing document that dealt with searches by government agents/agencies that the court could have referred to when making their ruling, one that laid out what requirements were needed to be met and steps taken in order for a search to be legal/constitutional...

    reply to this | link to this | view in chronology ]

    • identicon
      MathFox, 14 Nov 2019 @ 3:23am

      Re: Congrats, you're almost to where you should have started

      If only there was some previously existing document that dealt with searches by government agents/agencies that the court could have referred to when making their ruling, one that laid out what requirements were needed to be met and steps taken in order for a search to be legal/constitutional...

      It's called "law-book". But it seems that only citizens are supposed to know it and officers get off the hook by feigning ignorance.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 14 Nov 2019 @ 6:24am

      Re: Congrats, you're almost to where you should have started

      Which jurisdiction is this anyway? The text references a previous ruling in the 9th circuit without saying whether this one is from a different circuit or a higher-level court. Is this nationwide, or should travelers still be careful with their choice of entry point?

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Nov 2019 @ 3:21am

    Something else has happened under Trump that couldn't get done for some reason under Bush or Obama. I honestly expected this ruling to come during Bush II's first term.

    I'm not saying he in any way caused this to happen and I don't know if he wanted it but the country doesn't actually seem to be worse off with him thus far.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 14 Nov 2019 @ 5:06am

      Re:

      Something else happened somewhere that is unrelated and has nothing at all to do with anything ... not saying it is but it didn't change anything.

      reply to this | link to this | view in chronology ]

    • identicon
      David, 14 Nov 2019 @ 5:28am

      Re:

      It's probably like the conclusion of the Mueller report and Lindsay Graham's current defense strategy in the impeachment inquiry: Trump is too discoordinated and his underlings too disobedient for him to successfully break the law.

      reply to this | link to this | view in chronology ]

  • icon
    Jeremy Lyman (profile), 14 Nov 2019 @ 4:22am

    And you're going you display these rules on big signs at the inspection points, right?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Nov 2019 @ 4:25am

    "Federal Court says water is wet."

    Please remind where, what article and paragraph, in the constitution says it only applies to a subset of US territories (and the outside those territories the powers of the executive branch have no meaningful limits)?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Nov 2019 @ 6:02am

    In other words, they may have to articulate something like a reasonable suspicion years after the fact in the case of a minority of search victims who can bring a lawsuit. Well done.

    reply to this | link to this | view in chronology ]

  • identicon
    Rekrul, 14 Nov 2019 @ 6:28am

    Why do I have the feeling that travelers at border points are suddenly about to start acting a whole lot more suspiciously?

    reply to this | link to this | view in chronology ]

  • icon
    Norahc (profile), 14 Nov 2019 @ 6:55am

    Damn Constitution...always making cops jobs harder.

    Oh wait, that's what it's supposed to do.

    reply to this | link to this | view in chronology ]

  • icon
    Bergman (profile), 14 Nov 2019 @ 11:50am

    General Warrants

    The Constitution prohibits general warrants, as they were one of the worst legal abuses of power in the pre-Revolution USA. I can't imagine that a warrantless search that exceeds the breadth and scope of a general warrant could possibly be more legal than the already-prohibited general warrant.

    reply to this | link to this | view in chronology ]

  • icon
    Uriel-238 (profile), 14 Nov 2019 @ 12:24pm

    Something tells me...

    ...a detection dog signaling on the device will be sufficient enough to search through its data.

    reply to this | link to this | view in chronology ]


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