Searching Electronic Devices at the Border – Waiting for the Other Shoe to Drop

A federal judge in Massachusetts recently made big news, requiring Customs and Border Patrol (CBP) agents to establish “reasonable suspicion” to justify their searches of travelers’ electronic devices when entering the United States.  In searching the devices of the plaintiffs in the case, CBP agents were relying on what is commonly known as the “border search exception,” which allows the government to conduct searches and seizures at the border without a warrant or probable cause.  It is an exception to the Fourth Amendment’s general presumption that searches and seizures conducted without a warrant or probable cause are unreasonable and thus unconstitutional.

The court’s order in the case, titled Alasaad v. Nielsen, imposes one of very few restrictions to the latitude generally offered to government agents by the border search exception.  Judge Denise Casper based her decision on a 2013 Supreme Court case that established special privacy protections for cell phones.  Her ruling highlights a growing rift among federal judges regarding the extent to which electronic devices should receive special protections under the Fourth Amendment.  As a result, Alasaad v. Nielsen carries significance not just for boarder search authority but also for privacy rights in electronic devices more broadly.

Cell Phones Are Just Different

In 2014, the Supreme Court’s ruling in Riley v. California distinguished searches of electronic devices from other searches, at least for searches carried out in the context of making arrests.  Chief Justice Roberts wrote for a unanimous Court: “[m]odern cell phones are not just another technological convenience.  With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life.’” 

In its decision, the Court reaffirmed the baseline Fourth Amendment principle that the degree to which a search intrudes on an individual’s privacy must be balanced against the degree that search is needed in order to advance a legitimate government interest.  In applying that principle, the Court emphasized that searching a cell phone, with all that it holds, represents a major intrusion on personal privacy.

Since 2014, lower courts have applied Riley in very different ways.  The search in Riley was conducted in the context of an arrest, and the Eleventh Circuit Court of Appeals has limited the decision’s application to those facts.  The Fourth and Ninth Circuits, however, have held that the balancing test has broader applicability, including in the context of border searches.

Judge Casper’s approach, if affirmed on appeal, could bring the First Circuit into the same camp as the Fourth and Ninth, increasing the likelihood that the Supreme Court will, once again, need to review the question of when the government can search electronic devices, now in the context of border searches.

But, beyond the scope of Riley’s application, there is an important question that Judge Casper did not address – one that raises questions as to the impact Judge Casper’s ruling might have on how CBP and ICE utilize their search authority with respect to electronic devices. 

The “What” and the “Who” of Border Interdiction

CBP and Immigration and Customs Enforcement (ICE) have two principal responsibilities upon which their search authority is generally based: (1) interdiction of contraband, and (2) denying admission to individuals they consider dangerous (e.g., terrorists, drug traffickers).  Call the first a “contraband” and the second an “immigration” mission.

Judge Casper’s ruling was limited to CBP’s “contraband” mission.  Ten of the eleven plaintiffs are U.S. citizens, and the eleventh is a green card holder.  These individuals are all per se admissible when seeking to re-enter the United States.  By definition, none of them, once properly identified as admissible to the United States, could be subject to search or seizure pursuant to the “immigration” mission.

This is why the court’s order specifically requires CBP agents, in the context of its “contraband” mission, to establish a reasonable suspicion that searching a traveler’s electronic device will reveal contraband on that device before executing such a search.  They cannot base the search on a generalized suspicion or as part of an effort to unearth general evidence of wrongdoing.

This requirement imposed a limitation on the border search exception that did not previously exist, though reasonable suspicion is often equated to a “hunch” and is a lower standard than probable cause (which is required to obtain a warrant).  The only types of contraband that would actually be stored on an electronic device (outside of, for example, finding a stash of physically concealed narcotics) are child pornography, government classified information, or counterfeit media (e.g., pirated movies or software). There aren’t too many scenarios in which a CBP agent would have information available on a random traveler that would provide the basis for this specific suspicion perhaps if they had a tip from law enforcement or saw classified documents poking out of the traveler’s briefcase.)

But, again, the new order does not apply in the context of searches related to immigration enforcement, which is focused, in part, on identifying individuals who could be considered dangerous (and should therefore be denied admission).  Judge Casper did not impose any legal standard for these types of searches. 

Even if the order did impose a reasonable suspicion requirement in conducting a search to assess admissibility, the challenge to CBP would not be nearly so great as in the contraband mission.  It is easier to envision more frequent scenarios wherein CBP or ICE agents could establish a reasonable suspicion based (for example) upon an individual’s travel history or their failure to provide clear or coherent answers to questions in primary or secondary immigration screening. 

In this light, Judge Casper’s ruling not only is limited in its explicit scope but also may prove to have a modest impact on the ability of CBP or ICE to conduct searches of electronic devices.  But that’s not to say that the way ahead is clear (or without controversy).

Where to from Here?

The fact that various federal appellate courts were already split on related questions suggested that further cases involving the searching of electronic devices were headed to the Supreme Court even prior to Judge Casper’s ruling, but this new decision reflects what may be a strong trend and highlights the stakes involved with respect to searching electronic devices. 

While the Eleventh Circuit may have been correct in limiting Riley to searches conducted incident to an arrest – it nonetheless may have erred in its application of the Court’s general balancing test with respect to border searches of electronic devices.   In Riley, the Court stated that the government’s interest in protecting the borders outweighs a traveler’s privacy interest (noting the well-established principle that individuals have a reduced expectation of privacy at the international border).

Indeed, even CPB and ICE seem to recognize the privacy implications of searching electronic devices.  Beginning in 2018 (after the majority of the plaintiff’s in the case had been subjected to their searches), CBP and ICE voluntarily modified their process for searching electronic devices at the border, requiring reasonable suspicion for “advanced” searches (where the device is connected to external equipment) but allowing suspicionless searches where the procedure was “basic” (using only the device’s native operating system). 

To be clear, the volume and sensitive nature of information available even in a “basic” search are so significant (it can encompass the user’s entire history photographs, documents, and communications stored either on the device or on the cloud) that trying to distinguish between these two is what lawyers often refer to as a “distinction without a difference.”  The “advanced” search may allow the government to conduct automated forensic analyses of all available information (to include deleted data), but it is clear that the potential privacy impacts of either search are profound.

All told, Riley appeared to mark a turning point in the federal courts’ approach to searches of electronic devices – in particular with respect to the fact that very few physical searches can come even close to the potential reach of an electronic device search.  In Riley, the Court offered a sense of how it views the massive amount of data stored on a cell phone as affecting the Fourth Amendment balancing analysis, raising the question as to what governmental interest is sufficient to allow a suspicionless search of an electronic device. 

In the various cases assessing searches of electronic devices at the border, plaintiffs have asked the courts put a warrant requirement on the other side of that scale – which would force the government to establish probable cause prior to conducting the search.  At least in the context of border searches, a number of courts have disagreed and (except in the Eleventh Circuit) imposed the lower reasonable suspicion requirement.

While this general result is clearly less than what privacy advocates a believe is necessary, it represents a sensible application of the Court’s balancing test – one that imposes some limitation on governmental searches.  But it does so in a manner that is not likely to prevent the government from justifying these searches in cases where there is a compelling governmental interest – not just for the general search authority, but for the application of that authority to particular individuals.