Welcome
US Law Week

Warrantless Digital Device Searches at U.S. Border Ruled Valid (2)

Feb. 10, 2021, 4:30 PM; Updated: Feb. 10, 2021, 7:35 PM

The First Circuit upheld U.S. border security officials’ ability to search travelers’ mobile phones and other digital devices without a warrant, ruling that it’s not a constitutional violation.

The U.S. Court of Appeals for the First Circuit decided Tuesday that such searches are allowed under the First and Fourth Amendments, despite concerns raised over privacy and free speech.

The ruling reverses a district court decision from 2019 that narrowed the scope of digital searches permitted at the border. The First Circuit said it “apparently is the first circuit court to address these questions in a civil action.”

Two types of searches were at issue in the case: basic reviews of digital devices and more advanced analysis of a device’s content. The district court had ruled that “reasonable suspicion” that a device contains digital contraband is needed for either kind of search.

The appeals court disagreed, ruling that basic searches are considered routine and can be performed without reasonable suspicion. The First Circuit also held that advanced searches of digital devices at the border don’t need a warrant or probable cause, though government policies for advanced searches require reasonable suspicion or a national security concern.

“There are so many things that can be accessed with a ‘basic’ search,” said Rachel Levinson-Waldman, deputy director of the Liberty & National Security Program at the Brennan Center for Justice. The Brennan Center submitted a brief in the case arguing that border searches of digital devices, whether they’re manual or forensic, should require at least reasonable suspicion, if not a warrant.

“I suspect that distinction,” between manual and forensic searches, “won’t be meaningful or important for a lot of travelers at the border,” Levinson-Waldman said.

Privacy Concerns

The decision is in line with those of other appeals courts, which have largely deferred to the government on the issue of device searches at the border, according to Sophia Cope, a senior staff attorney on the Electronic Frontier Foundation’s civil liberties team. EFF represents the travelers in the case, along with the American Civil Liberties Union.

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.

Privacy advocates have argued that searches of a traveler’s phone can be more revealing than a search of a suitcase.

“These privacy concerns, however significant or novel, are nevertheless tempered by the fact that the searches are taking place at the border,” the First Circuit said.

The case involves 10 U.S. citizens and one lawful immigrant who sued the Department of Homeland Security over searches of their devices.

The DHS press office didn’t immediately respond to a request for comment. A spokesperson for U.S. Customs and Border Protection, one of the DHS units responsible for border searches, said the agency can’t comment on litigation.

Cope said EFF and the ACLU are considering their options for following up on the appeals court ruling. The groups could seek a rehearing from the full First Circuit, since the decision was made by a three-judge panel. They could also appeal to the U.S. Supreme Court.

“Warrantless and suspicionless electronic device searches can give border officers unfettered access to vast amounts of private information about our lives,” Esha Bhandari, deputy director of the ACLU’s Speech, Privacy, and Technology Project, said in a statement Wednesday.

The case is: Alasaad v. Wolf, 1st Cir., No. 20-01081, opinion 2/9/21.

(Updates with reaction from Brennan Center deputy director.)

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

To contact the editor responsible for this story: Kibkabe Araya at karaya@bloomberglaw.com; Keith Perine at kperine@bloomberglaw.com

To read more articles log in. To learn more about a subscription click here.