A U.S. District Court held that U.S. Customs and Border Protection (CPB) and U.S. Immigration and Customs Enforcement’s (ICE) current practices for searches of smartphones and computers at the U.S. border are unconstitutional and the agency must have reasonable suspicion before conducting such a search. However, the Court declined the plaintiffs’ request that the information taken off of their devices be expunged by the agencies. This ruling follows a Department of Homeland Security Office of the Inspector General (OIG) report that found CPB “did not always conduct searches of electronic devices at U.S. ports of entry according to its Standard Operating Procedures” and asserted that “[t]hese deficiencies in supervision, guidance, and equipment management, combined with a lack of performance measures, limit [CPB’s] ability to detect and deter illegal activities related to terrorism; national security; human, drug, and bulk cash smuggling; and child pornography.”
In terms of a legal backdrop, the United States Supreme Court has found that searches and seizures of electronic devices at borders and airports are subject to lesser legal standards than those conducted elsewhere in the U.S. under most circumstances. Generally, the government’s interest in securing the border against the flow of contraband and people not allowed to enter allow considerable leeway to the warrant requirements for many other types of searches. However, in recent years two federal appeals courts (the Fourth and Ninth Circuits) have held that searches of electronic devices require suspicion on the part of government agents while another appeals court (the Eleventh Circuit) held differently. Consequently, there is not a uniform legal standard for these searches.
The case was brought by the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF) on behalf of 10 U.S. citizens and one legal permanent resident who had had their phones and computers searched by CBP or ICE agents upon entering the U.S., typically at airports. The ACLU argued these searches violated the Fourth Amendment’s because the agents did not obtain search warrants before conducting the searches of the devices for contraband. The plaintiffs further alleged the searches violated the First Amendment because “warrantless searches of travelers’ electronic devices unconstitutionally chill the exercise of speech and associational rights” according to their complaint. The agencies claimed that such searches require neither a warrant nor probable cause and that the First Amendment claim held no water, a position a number of federal appeals courts have held.
The Court noted that
In January 2018, CBP updated its policy to distinguish between two different types of searches, “basic” and “advanced,” and to require reasonable suspicion or a national security concern for any advanced search, but no showing of cause for a basic search. Under this policy, an advanced search is defined 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.” The parameters of an advanced search are clearer given this definition than that adopted for a basic search, which is merely defined as “any border search that is not an advanced search.” CBP and ICE use the same definitions of basic and advanced searches and ICE policy also requires reasonable suspicion to perform an advanced search.
The Court stated that
Although the border search exception and the search incident to arrest exception are similar, narrow exceptions to the search warrant requirement, the Court recognizes the governmental interests are different at the border and holds that reasonable suspicion and not the heightened warrant requirement supported by probable cause that Plaintiffs seek here and as applied to the search in Riley is warranted here.
The Court added that
Moreover, the reasonable suspicion that is required for the currently defined basic search and advanced search is a showing of specific and articulable facts, considered with reasonable inferences drawn from those facts, that the electronic devices contains contraband. Although this may be “a close question” on which at least two Circuits disagree…the Court agrees that this formulation is consistent with the government’s interest in stopping contraband at the border and the long-standing distinction that the Supreme Court has made between the search for contraband, a paramount interest at the border, and the search of evidence of past or future crimes at the border, which is a general law enforcement interest not unique to the border.
The Court explained the relief the plaintiffs sought:
- declaration that CPB and ICE’s policies violate the First and Fourth Amendment facially and have violated Plaintiffs’ First and Fourth Amendment rights by authorizing and conducting searches of electronic devices absent a warrant supported by probable cause, and
- declarations that CPB and ICE’s policies violate the Fourth Amendment facially and have violated Plaintiffs’ Fourth Amendment rights by authorizing and conducting the confiscation of electronic devices absent probable cause
The Court stated that this relief is granted to the extent that it is declaring “that the CBP and ICE policies for “basic” and “advanced” searches, as presently defined, violate the Fourth Amendment to the extent that the policies do not require reasonable suspicion that the devices contain contraband for both such classes of non-cursory searches and/or seizure of electronic devices; and that the non-cursory searches and/or seizures of Plaintiffs’ electronic devices, without such reasonable suspicion, violated the Fourth Amendment.”
However, the Court declined to institute a nationwide injunction preventing [CPB and ICE] from “searching electronic devices absent a warrant supported by probable cause that the devices contain contraband or evidence of a violation of immigration or customs laws,”…and b) an injunction preventing Defendants from confiscating electronic devices, with the intent to search the devices after the travelers leave the border, without probable cause and without promptly seeking a warrant for the search.” The Court asserted that briefing on the issues would be needed before such relief could be granted.
Michael Kans 