Last week, in Alasaad v. McAleenan, the U.S. District Court for the District of Massachusetts ruled that the Fourth Amendment requires reasonable suspicion that a traveler is carrying contraband in order to search a traveler’s smartphone or laptop at airports and other U.S. ports of entry.  Judge Denise J. Casper’s decision relied on Riley v. California, in which the Supreme Court held that the Fourth Amendment generally requires the government to obtain a warrant to search cell phones incident to arrest, to bar suspicionless or random searches of electronic devices at the border.  Judge Casper reasoned that while “the government’s interest in preventing the entry of unwanted persons and effects is at its zenith at the border,” this interest must be balanced against the “substantial personal privacy interests” implicated by the searches of electronic devices.

The plaintiffs in Alasaad are eleven travelers whose devices were searched, and in some cases confiscated, upon arriving at a U.S. airport from overseas or at a border crossing.  Judge Casper found that federal agents accessed attorney-client communications, information related to a plaintiff’s journalistic activities, and social media postings in carrying out suspicionless searches of the plaintiffs’ cell phones and laptops.  One traveler had “twice had her iPhones searched at the border over her religious objections to having CBP officers, especially male officers, view photos of her and her daughters without their headscarves as required in public by their religious beliefs.”  In another case, federal agents extracted a traveler’s data and retained it for fifty-six days.

Customs and Border Protection (“CBP”) and Immigration and Customs Enforcement (“ICE”) updated their policies in 2018 to require reasonable suspicion or a national security concern to conduct a search—but only for “advanced” “forensic” searches.  In her decision, Judge Casper dismissed the notion that reasonable suspicion should only be required for forensic searches, and not for “basic” manual searches: “a basic search and an advanced search differ only in the equipment used to perform the search and certain types of data that may be accessed with that equipment, but otherwise both implicate the same privacy concerns.”  She noted that electronic devices can contain a large volume of information that can be accessed during even a basic search.  This point differentiates Alasaad from earlier cases where federal courts of appeals have split on whether the government must have some amount of suspicion for forensic searches of devices seized at the border.

Judge Casper rejected the government’s argument that electronic devices could contain information that speaks to a traveler’s admissibility to the United States, noting that the plaintiffs are U.S. citizens and lawful permanent residents, who are admissible “by definition.”  She also expressed skepticism about the government’s argument that requiring reasonable suspicion would “obviate the deterrent effect of the border search exception,” pointing to the lack of information about the prevalence of digital contraband, such as child pornography, entering the United States at ports of entry.

ICE does not track the number of basic searches that it conducts, but CBP alone conducted some 108,000 searches of electronic digital devices in the last six years.  Under Judge Casper’s decision, federal agents at both agencies are required to demonstrate reasonable suspicion before they can search a traveler’s electronic device.

* Covington Participated in the Case as Counsel for Amici Curiae Brennan Center for Justice, the Center for Democracy and Technology, the R Street Institute, and TechFreedom.