On November 12, 2019, a federal court in Boston ruled that searches of international traveler’s electronic devices by Immigration and Customers Enforcement (“ICE”) and Customs and Border Protection (“CBP”), at airports and other U.S. portions, performed without reasonable suspicion were unconstitutional.
The ruling arose from a lawsuit filed by the American Civil Liberties Union, Electronic Frontier Foundation, and ACLU of Massachusetts, on behalf of 11 travelers whose smartphones and laptops were searched without individualized suspicion at U.S. ports of entry. Of the eleven travelers, ten are U.S. Citizens and the eleventh is a Lawful Permanent Resident.
According to the ruling, the number of electronic device searches at U.S. ports of entry has increased significantly over the last several years. For instance, last year, CBP conducted more than 33,000 searches of electronic devices at the border.
As you may know, the two agencies with primary responsibility for border searches are CBP and ICE. 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 the CBP 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.” On the other hand, the definition for a basic search is defined as “any border search that is not an advanced search.”. Both CBP and ICE use the same definitions of basic and advanced searches and both policies require reasonable suspicion to perform an advanced search.
As noted, when federal officials conducted an “advanced” search, they would do so by connecting external equipment to an electronic device. On the other hand, a “basic” search utilizes the internal search features of the electronic device itself, including the perusal of any applications, photos, messages, documents, contacts, etc.
Each of the Plaintiffs was subject to some form of search from the CBP and/or ICE. Some of the searches were at border crossings, although most were at U.S. airports after a Plaintiff’s return to the United States on an international flight.
Various Plaintiffs complained of various invasive searches. For instance, one Plaintiff stated that federal officials viewed photos on her iPhone, over her religious objections, because the phone included photos of her and her daughters without their headscarves as required in public by their religious beliefs. Other searches resulted in CBP officers viewing Plaintiff’s attorney-client privileged information and confidential information work related information. In addition, there were reports that one of the Plaintiff’s laptops was imaged and the resulting data was retained by CBP.
Plaintiffs challenged the constitutionality of these searches, claiming that the policies that allowed for border searches of electronic devices without a warrant—even as these policies still require no showing (for “basic” searches) and reasonable suspicion (for “advanced” searches)—are violative of the Fourth Amendment’s protection against unreasonable searches and seizures.
Defendants, in response, argued that the border search exception to the Fourth Amendment’s warrant requirement applied to both types of searches and no further showing is constitutionally required.
The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” A warrantless search is per se unreasonable under the Fourth Amendment, unless one of “a few specifically established and well-delineated exceptions’ applies.” The border search exception, “grounded in the recognized right of the sovereign to control, subject to substantive limitations imposed by the Constitution, who and what may enter the country,” is one such exception.
The majority of the court’s opinion was spent weighing the interest of the border search exception against the intrusion upon an individual’s privacy and its promotion of the government’s legitimate interest. Before balancing the competing interest, the court noted that individuals have a reduced expectation of privacy at the international border, while the government’s “interest in preventing the entry of unwanted persons and effects is at its zenith” there. Therefore, the court found, “The balancing inquiry thus begins with the scales tipped heavily in favor of governmental interests.”
In weighing the government’s interest against an individual’s privacy at the border, the court rationalized that even border searches are not boundless. Instead, “[w]hen applying exceptions to the warrant requirement, courts must determine whether the search at issue is within the scope of the exception, i.e., whether the search furthers the underlying purpose of the exception, and whether the search, even if within the scope of the exception, intrudes upon a competing privacy interest to such an extent that a warrant or other heightened level of suspicion should still be required.”
After spending significant time focusing on the interest of both the government and the public at an international border, the crux of the case seemed to focus on the definition, and the (lack of) real world difference, between an “advanced” search and a “basic” search.
In conclusion, the court was unable to discern a meaningful difference between the two classes of searches in terms of the privacy interests implicated. As part of a “basic” search, federal officials would have unfettered access to thousands of pictures, location data and browsing history, particularly as a device’s native operating systems become more sophisticated and more closely mirror the capabilities of an advanced search. In light of the lack of meaningful difference between basic and advanced searches, the court concluded that agents and officials must have reasonable suspicion to conduct any search of entrants’ electronic devices under the “basic” searches and “advanced” searches as now defined by the CBP and ICE policies.