Privacy Law

Judge rules border agents need reasonable suspicion to search electronic devices

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A federal judge in Boston ruled Tuesday that border agents violate the Fourth Amendment when they search electronic devices at ports of entry without a reasonable suspicion.

U.S. District Judge Denise Casper said there must be a reasonable suspicion the devices contain contraband—such as child pornography or classified information—before the search. The Associated Press, Courthouse News Service and Ars Technica have coverage on the Nov. 12 opinion; a press release is here.

Casper said she was requiring reasonable suspicion, rather than a warrant justified by probable cause, because travelers have a reduced expectation of privacy at the border and the government has an interest in maintaining “territorial integrity.”

Casper ruled in a lawsuit by 11 travelers whose smartphones and laptops were searched at border crossings and airports without individualized suspicion. The travelers—10 U.S. citizens and one lawful permanent resident—were represented by the American Civil Liberties Union, the ACLU of Massachusetts and the Electronic Frontier Foundation.

Casper said reasonable suspicion is needed for both basic and advanced searches of devices.

An advanced search is defined as a search in which an officer connects external equipment to an electronic device to review, copy and analyze its contents. Such searches can recover deleted or encrypted data and copy information physically present on the device.

A basic search consists of other types of searches of electronic devices using their native operating system. Agents conducting such a search can access content on the device and use its own internal search tools to find information.

U.S. Customs and Border Protection’s policy required no showing of cause for a basic search at the border and a showing of reasonable suspicion or a national security concern for an advanced search. U.S. Immigration and Customs Enforcement’s policy also required reasonable suspicion for an advanced search.

But Casper saw no meaningful difference between the two types of searches based on the privacy interests implicated.

Even a basic search of an electronic device “may reveal a wealth of personal information,” Casper said. “Such devices can contain, for some examples, prescription information, information about employment, travel history and browsing history.”

The plaintiffs had sought an injunction requiring probable cause and a warrant for the searches. Casper said that even if she had adopted that higher privacy standard, she would have denied a nationwide injunction without further briefing of the parties. She denied the injunction request but allowed it to be renewed.

The case is Alasaad v. McAleenan.

See also: “Traveling out of the country? Lawyers should consider using ‘burner’ devices”

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