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Searches of Digital Devices Face Appeals Court Scrutiny (1)

Jan. 5, 2021, 4:31 PMUpdated: Jan. 5, 2021, 7:58 PM

A federal appeals court scrutinized what justification border security officials need for searching travelers’ mobile phones and other digital devices without a warrant, questioning whether such authority raises constitutional issues.

The U.S. Court of Appeals for the First Circuit heard oral argument Tuesday in a case involving 10 U.S. citizens and one lawful immigrant who sued the Department of Homeland Security over searches of their devices, claiming a violation of the First and Fourth Amendments.

Two First Circuit judges who heard the case, Sandra L. Lynch and Bruce M. Selya, appeared skeptical of arguments that the amendments limit the scope of the agency’s search authority.

DHS is appealing a district court decision from 2019 that found the searches must be based on “reasonable suspicion” that a device contains digital contraband.

“The district court limited the scope of searches to less than the statutory authority” given to the DHS units responsible for border searches, Lynch said during the argument.

How the First Circuit rules in the case could deepen a split among appeals courts, which have differed in their views on what level of suspicion government agents need to search digital devices travelers carry over the U.S. border. The U.S. Supreme Court declined on Oct. 5 to step in on the issue in Williams v. U.S., another related case to a laptop search.

Border Security

Usually law enforcement searches require a warrant supported by probable cause. There’s an exception at the border, where security concerns can outweigh privacy considerations.

The two DHS units primarily responsible for border searches are U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement. Both agencies adopted policies in 2018 that distinguish between basic reviews of digital devices and more advanced analysis.

Reviews are allowed without suspicion, while going beyond that to copy or analyze a device’s content requires “reasonable suspicion” or a national security concern. The district court ruled in this case that reasonable suspicion is needed for either kind of device search.

The appeals court should go further and rule that a warrant is needed, according to lawyers from the Electronic Frontier Foundation and the American Civil Liberties Union, which represent the travelers.

Selya asked one of their lawyers whether the reasonable suspicion standard was enough to address the travelers’ concerns.

“It seems to me that is in itself a protection against the kind of general rummaging that you seem to fear,” Selya said during the argument.

Reasonable suspicion “would go some way toward” addressing their concerns, Esha Bhandari, an attorney with the ACLU’s Speech, Privacy, and Technology Project, responded.

The case: Alasaad v. Wolf, 1st Cir., No. 20-01081, oral argument 1/5/21.

(Updates with additional reporting.)

To contact the reporter on this story: Andrea Vittorio in Washington at avittorio@bloomberglaw.com

To contact the editors responsible for this story: Renee Schoof at rschoof@bloombergindustry.com; Kibkabe Araya at karaya@bloomberglaw.com