The First Circuit ruled this month that warrantless searches of electronic devices at the border do not violate the First or Fourth Amendments.
The American Civil Liberties Union (ACLU) and Electronic Frontier Foundation (EFF) filed suit on behalf of eleven plaintiffs whose electronic devices had been searched by Customs and Border Protection (CBP) or Immigration and Customs Enforcement (ICE), either at the physical border or upon arrival from an international flight.
The plaintiffs challenged policies promulgated by ICE and CBP that authorize border agents to conduct “basic searches” of electronic devices — any search not involving the connection of external electronic equipment to the device — without probable cause, or even reasonable suspicion. Plaintiffs’ devices contained a variety of sensitive and personal information, including attorney-client communications, private photos of a Muslim woman without her headscarf, and journalistic work product.
The district court invalidated the policies in part, ruling on Fourth Amendment grounds that border agents must have reasonable suspicion that a device contains digital contraband in order to search it. This was a less stringent requirement than what the plaintiffs sought: a warrant supported by probable cause.
The First Circuit, however, upheld the policies in their entirety, holding that “neither a warrant nor probable cause is required for a border search of electronic devices” and that basic searches “need not be supported by reasonable suspicion.” The court reasoned that the privacy concerns triggered by device searches “however significant or novel, are nevertheless tempered by” the government’s heightened interests at the border.
Plaintiffs also argued that the ICE and CBP policies separately violated the First Amendment. The district court declined to grant relief on this ground, stating that “a different standard for First Amendment issues from the Fourth Amendment issues is not necessarily required.” Plaintiffs and amici challenged this holding on appeal. An amicus brief on behalf of First Amendment and privacy scholars argued that, because electronic devices contain expressive material by and private information about their owners, device searches “substantially burden ... core First Amendment freedoms.”
Another amicus brief highlighted the burden that searches place on reporters, arguing that “unfettered government access to [electronic] devices at the border threatens freedom of the press.”
The First Circuit acknowledged that “[t]he First Amendment provides protections—independent of the Fourth Amendment — against the compelled disclosure of expressive information.” But its First Amendment analysis dismissed the weighty expressive interests at issue in electronic device searches. The court declined to determine “the appropriate standard to assess alleged government intrusions on First Amendment rights at the border,” but ultimately concluded that “[u]nder any standard” the policies were facially legitimate as they “have a plainly legitimate sweep and serve the government's paramount interests in protecting the border.” The court did, however, leave open the possibility of an as-applied challenge of the policies “if CBP and ICE were targeting journalists or using border searches to pierce attorney-client privilege.”
Electronic devices contain a large volume of information about a person’s associations, whereabouts, communications with others, and thoughts. The First Circuit’s decision leaves this material vulnerable to arbitrary search.
Jackson Busch is Yale Law School student and member of Yale’s Media Freedom and Information Access (MFIA) Clinic. The MFIA Clinic submitted an amicus brief in the case on behalf of a group of First Amendment and privacy law scholars. Joshua Paul Waldman, Joseph H. Hunt, Scott R. McIntosh, and Andrew E. Lelling were on briefs for defendants/appellants/cross-appellees. Esha Bhandari, Adam Schwartz, Sophia Cope, Saira Hussain, Hugh Handeyside, Nathan Freed Wessler, Matthew R. Segal, and Jessie J. Rossman were on briefs for plaintiffs/appellees/cross-appellants.