By: Matt Romano

This week a federal district court in Boston ruled that the government’s suspicionless searches of international travelers’ smartphones and laptops at airports and other U.S. ports of entry violate the Fourth Amendment.[1]  This ruling came in a lawsuit, Alasaad v. Nielsen, filed by the American Civil Liberties Union and Electronic Frontier Foundation on behalf of eleven travelers whose smartphones and laptops were searched without reasonable suspicion at a US port of entry.[2]  The suit was filed against both U.S. Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) whose officers conducted these searches.[3]

 

A suspicionless search of a cell phone or laptop may seem like a clear violation of these travelers fourth amendment rights, but that’s not necessarily true when the search is conducted at a port of entry into the United States.  Under the Fourth Amendment, people are protected against unreasonable searches and seizures.[4] A warrantless search is per se unreasonable under the Fourth Amendment, unless one of a few specifically established and well-delineated exceptions apply.[5] One of these exceptions applies to border searches.[6] This border search exception applies to all ports of entry within the US including airports.[7] It is not limitless, but in many cases it does not even require reasonable suspicion.[8] When evaluating whether a suspicionless search under the border exception is permissible, courts generally balance of its necessity for the promotion of legitimate governmental interests and the level of intrusion upon an individual’s privacy.[9]

 

ICE and CBP argued that conducting these searches is invaluable to helping ensure national security; prevent the entry of criminals, inadmissible aliens, and contraband; and to facilitate lawful trade and travel.[10]  To support this argument,  ICE and CBP referenced 34 published cases involving the seizure of at the border of digital contraband or evidence.[11]  The court was not persuaded that these 34 cases were significant enough to overcome the traveler’s privacy interests though.[12] The CBP alone reportedly conducted 108,000 searches of electronic devices between 2012 and 2018, and the 34 cases were from a much larger period of time than just those seven years.[13]

 

When considering the privacy interest of travelers, the Supreme Court has court applied the border search exception without requiring reasonable suspicion to searches that it considers “routine.”[14] Whether a search is considered routine depends solely on degree of invasiveness and intrusiveness of the search.[15] ICE and CBP classify all border searches of electronic devices as either basic or advanced, requiring a showing of reasonable suspicion for advance searches only.[16]  The court in this case could not discern difference in the amount of information accessed between basic and advanced searches though.[17]  Most of the seizures of the eleven travelers’ devices in this case were all considered basic, and yet their duration ranged from 45 minutes to 15 days.[18]  During these “basic” searches, the officers accessed photographs, contacts, and data of both a personally and professionally sensitive nature.[19]  Based on how intrusive these searches were and the comparably weak governmental interest in conducting them without reasonable suspicion, the court held that neither advanced nor basic searches were routine and both require reasonable suspicion.[20]  This may only be a district court decision, but it still marks a major step toward protecting international travelers’ privacy rights.

 

[1] Federal Court Rules Suspicionless Searches of Traveler’s Phones and Laptops Unconstitutional, ALCU, Nov. 12, 2019, https://www.aclu.org/press-releases/federal-court-rules-suspicionless-searches-travelers-phones-and-laptops.

[2] Id.

[3] Alasaad v. Nielsen, No. 17-cv-11730-DJC, 2019 U.S. Dist. LEXIS 195556, at 2 (D. Mass. Nov. 12, 2019).

[4] See Id. at 23.

[5] Id.

[6] Id.

[7] See U.S. v. Molina-Gomez, 781 F.3d 13, 19 (1st Cir. 2015).

[8] See. Alasaad, 2019 U.S. Dist. LEXIS 195556, at 25.

[9] See Id.

[10] See id. at 26.

[11] Id. at 43.

[12] See Id.

[13] Id.

[14] See Id. at 33.

[15] Id.

[16] See Id. at 5.

[17] Id. at 51–52.

[18] See Id. at 48–51.

[19] See Id.  (accessing photos of a woman without her headscarf and a man’s privileged conversation with his lawyers).

[20] See Id. at 52.

image source: https://wtop.com/wp-content/uploads/2019/05/TSA-Border_Protection_16473.jpg

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