Reasonable Suspicion Required For Searches at the Border

This month, Judge Denise J. Casper issued a decision, Alasaad v. Nielsen, No. 17-cv-11730-DJC (D. Mass. Nov. 12, 2019), denying in part and granting in part the Defendants' motion for summary judgment. The Plaintiffs alleged that searches of United States citizens' electronic devices at ports of entry violated the Fourth Amendment and the First Amendment, and that copies made of the contents of the devices, passwords, and social media information should be expunged. The Court held that if these searches constitute non-routine searches, reasonable suspicion is required.

U.S. Customs and Border Protection requires reasonable suspicion for advanced searches, which it defines a searches that involve connecting external equipment (with a wire or wireless connection) to a device for the purpose of copying or analyzing data. A basic search is one that uses a device's own operating system and search tools and can review metadata. An advanced search is one which can recover deleted data, encrypted data, or make a copy of data saved to the device. Most of the searches at issue in this case took place at airports.

The CBP's Automated Targeting System allows it to access copies of data obtained from electronic devices obtained at past border searches, which shows ongoing and future harm and gives standing to seek expungement. While individuals have a reduced expectation of privacy at the border, the Court noted that digital evidence stored on personal electronic devices has limited usefulness in determining whether or not a person is a U.S. citizen, and only limited types of contraband can be stored on the devices. Even though warrants have not been required for searches of electronic devices, recent decisions have categorized forensic searches of digital devices as non-routine searches.

The Court cited the Supreme Court decision in Riley v. California, 573 U.S. 373 (2014) in finding that smartphones present a new privacy paradigm that means far more private information is exposed in searches of them than even in a search of home. "The potential level of intrusion from a search of a person’s electronic devices simply has no easy comparison to non-digital searches." Alasaad, at *29. It noted that the number of electronic searches performed by CBP is very small.

The Court accepted a cursory search of a smartphone to verify a person's identity would fall within the border search exception. However, in discussing the CBP's distinction between basic and advanced searches, the Judge Casper concluded that, "the Court concludes 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." Id. at *33. It did not find that a warrant supported by probable cause was needed for such searches.

Judge Casper did not find a remedy of ordering the data to expunged was warranted, where the evidence obtained in violation of the Constitution will be suppressed.