Government searches of cell phones, laptops, and other electronic devices without a warrant when we cross the U.S. border may violate the First and Fourth Amendments, according to a powerful ruling by a federal court last week in a civil rights lawsuit brought by EFF and the ACLU.
It is the latest and greatest of a growing wave of judicial opinions challenging the government’s claim that it can ransack and confiscate our electronic devices—just because we travel internationally. By allowing the EFF and ACLU case to proceed, the district court signaled that the government’s invasion of people’s digital privacy and free speech rights at the border raises significant constitutional concerns. This post analyzes the decision and explains what’s next for the case.
In Alasaad v. Nielsen, we sued on behalf of 11 travelers, arguing that the First and Fourth Amendments require border officers to get a warrant before searching our electronic devices. We also argue that the Fourth Amendment requires border officers to have probable cause before confiscating our electronic devices for weeks or months. We seek an “injunction” against the U.S. Department of Homeland Security, U.S. Customs and Border Protection, and U.S. Immigration and Customs Enforcement, meaning a command from a judge to end these practices.
The government moved to dismiss on two grounds. First, they claimed our clients lacked “standing” to seek an injunction, because supposedly our clients could not prove a sufficient risk of being searched again. Second, on the merits, the government claimed that the First and Fourth Amendments do not require border officers to have any suspicion at all before searching and confiscating travelers’ electronic devices.
We filed an opposition brief refuting the government’s arguments. We were buoyed by three strong amicus briefs (a.k.a. friend-of-the-court briefs). The court held an oral argument to explore the issues.
The district court rejected the government’s arguments, denied their motion to dismiss, and allowed us to proceed with our case. In her opinion, the judge made a host of critical rulings about how the Constitution protects digital privacy and free speech at the border.
Fourth Amendment Limits on Device Searches at the Border
The Alasaad court’s analysis rested significantly on the Supreme Court’s holding in Riley v. California (2014) that the Fourth Amendment requires police officers to get a warrant before searching the cell phones of arrestees. In Riley, the Court balanced the privacy interests in cell phones against the government’s interests in conducting warrantless searches incident to arrest—specifically, officer safety and evidence preservation.
On the privacy side of the balance, the Alasaad court explained that “electronic devices implicate privacy interests in a fundamentally different manner than searches of typical containers or even searches of a person.” The court also extensively quoted the Supreme Court’s Riley decision, including how with digital devices, “The sum of an individual’s private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions” dating back to the purchase of the phone. In the opinion, the court stated:
“a person’s internet browsing history, historic location information, and mobile application software (or ‘apps’) ‘can form a revealing montage of the user’s life.’ Indeed, the Court stated that “a cell phone search would typically expose to the government far more than the most exhaustive search of a house.’”
To illustrate the way that cell phone searches burden privacy, the Alasaad court highlighted that two of the plaintiffs are Muslim women with religious concerns about men viewing their hair: “Nadia Alasaad and Merchant object [to male border officers searching their phones] due to their photos on their phones of themselves without headscarves.”
Additionally, some cases as well as CBP’s 2018 policy provide more privacy protection from “forensic” searches (when border officers deploy their own digital tools to analyze travelers’ devices), and less privacy protection from “manual” searches” (when border officers simply tap or mouse around the device). Plaintiffs reject this dichotomy, because manual searches can access virtually all of the information that forensic searches can access, and manual searches can take advantage of the automatic search tools built into travelers’ own devices. Significantly, the Alasaad court acknowledged that manual searches can be intrusive, too.
On the government’s side of the scale, the Alasaad court relied on Riley to explain that warrantless searches of a “particular category of effects” such as cell phones must be sufficiently “tethered” to the government’s interests. At the border, the government’s interests in conducting warrantless searches are to collect duties and to prevent the entry of contraband and other harmful items. The question, then, is whether warrantless searches of electronic devices sufficiently advance these interests. The Alasaad court agreed with plaintiffs that there is an important difference between border officers conducting warrantless searches for “contraband” (where tethering is stronger), as opposed to conducting warrantless searches for “evidence” of contraband or other unlawful activity (where tethering is weaker).
“electronic devices implicate privacy interests in a fundamentally different manner than searches of typical containers or even searches of a person.”
To the degree that border officers are seeking digital contraband, the Alasaad court held that “it is unclear at this juncture the extent to which a warrant requirement would impede customs officers’ ability to ferret out such contraband.” The court explained, quoting Riley, that “recent technological advances make the process of obtaining a warrant more efficient.”
Moreover, the court was not persuaded by the government’s claim that child pornography is a form of digital contraband that justifies warrantless searches of electronic devices. The court explained that Riley requires the government to show that the problem it wants to solve with warrantless searches is “prevalent.” The Alasaad court cited government data showing that “the vast majority” of child pornography is accessed on the Internet, and thus found it “unclear” whether there is a prevalent problem with travelers carrying such contraband over the border.
Assuming that privacy interests outweigh government interests, the next question is what level of individualized suspicion a border officer must have before searching an electronic device. While the government asserts that the ceiling is “reasonable suspicion” (a lower level of protection), plaintiffs demand a warrant (the highest level of protection). The Alasaad court left this question open, but the judge suggested that a warrant might be preferable because the reasonable suspicion standard applied to border searches of electronic devices might provide “no practical limit at all.”
First Amendment Limits on Device Searches at the Border
The Alasaad court emphasized plaintiffs’ argument that when border officers search travelers’ electronic devices, they burden travelers’ First Amendment rights to free speech and association. Specifically, they expose membership in private advocacy organizations, unmask anonymous speech, and intrude on freedom of the press.
Given these burdens, the court held that border device searches are subject to a strong First Amendment test: government must prove a “substantial relation between the governmental interest and the information required to be disclosed.”
The court rejected an earlier judicial opinion suggesting that First Amendment scrutiny of border device searches would cause “headaches” for border officers. Quoting Riley, the Alasaad court explained that plaintiffs are not seeking a special or complicated rule; as with the Fourth Amendment claim, “what plaintiffs seek as a remedy here is ‘simple—get a warrant.’”
The court in its opinion also cited examples from plaintiffs’ complaint to illustrate how border device searches burden travelers’ First Amendment rights:
“While Dupin’s phone was being searched, he was questioned ‘about his work as a journalist, including the names of the organizations and specific individuals within those organizations for whom he had worked’; Gach was questioned ‘about his work as an artist’ prior to searching his phone; Kushkush was asked about ‘his reporting activities’; and Merchant was questioned at secondary inspection about her ‘religious affiliation’ and her blog.”
Fourth Amendment Limits on Device Confiscations at the Border
The Alasaad court held that plaintiffs plausibly alleged that border officers’ lengthy confiscations, without probable cause, of plaintiffs’ devices violated the Fourth Amendment. The court explained that seizures must be reasonable “not only at their inception but also for their duration.” The court emphasized plaintiffs’ allegations of a 10-month confiscation of Mr. Allababidi’s device, and a 56-day confiscation of Mr. Wright’s devices.
Plaintiffs Have Standing
The Alasaad court on two grounds held that plaintiffs sufficiently alleged standing to seek an injunction against the government for these First and Fourth Amendment violations.
First, the court held that plaintiffs pled a substantial risk of future border searches and confiscations of their electronic devices. The court emphasized plaintiffs’ allegations that all plaintiffs will continue to travel across the U.S. border with their devices; that when they do so, they will be exposed to the government’s device search policies; and that plaintiffs can only avoid this risk by foregoing their right to travel or by traveling without their devices, which is impractical. The court rejected the government’s argument that the odds of future search are too low (the government asserts that they search the devices of 0.008% of travelers crossing the border). The court reasoned that “even a small probability of injury is sufficient”; that the absolute number of searches is large (over 30,000 per year); and that plaintiffs may be more likely than other travelers to suffer future searches, given that four plaintiffs have already been searched on multiple occasions, and that officers are alerted to past searches.
Second, the court held that plaintiffs had standing to seek expungement of the information that the government seized from plaintiffs’ devices, to cure this ongoing harm resulting from the past unconstitutional searches of plaintiffs’ devices. The court emphasized plaintiffs’ allegation that government agencies “remain free to use and exploit [this seized information] and share it with other agencies that may do the same.”
EFF will continue to fight for digital privacy at the border, in Alasaad and other cases. The district court’s powerful new ruling puts a lot of wind in our sails.
If you want to strengthen the privacy of your own digital information when you cross the border, check out our guide on how to do so. If you want to take direct action, contact your federal legislators and ask them to support a pending bill to require border officers to get a warrant before searching digital devices.
The border is not a Constitution-free zone.