First Circuit Reverses District Court on Scope of Device Searches at the Border: Data Privacy Case Law

In Alasaad, et al. v. Mayorkas, et al., Nos. 20-1077 | 20-1081 (1st Cir. Feb. 9, 2021), the First Circuit Court of Appeals in reviewing the district court ruling regarding warrantless device searches at the border did “affirm in part, reverse in part, vacate in part, and remand for the entry of a revised judgment consistent with this opinion” that “the district court erroneously narrowed the scope of permissible searches of such equipment at the border.”

Case Background

The plaintiffs filed suit in September 2017 alleging that U.S. Customs and Border Protection (“CBP”) and U.S. Immigration and Customs Enforcement (“ICE”) violated the Fourth and First Amendments by performing various types of searches of electronic devices without warrants and violated the Fourth Amendment by retaining plaintiffs’ electronic devices for an extended period absent probable cause. The plaintiffs sought declaratory and injunctive relief, including expungement of “all information gathered from, or copies made of, the contents of Plaintiffs’ electronic devices.”

After discovery, the parties filed cross-motions for summary judgment. The district court granted in part and denied in part plaintiffs’ motion for summary judgment and denied the government’s motion for summary judgment…The district court also held that plaintiffs had standing to seek declaratory and injunctive relief as well as expungement of their data from CBP and ICE databases.  As to the merits of the Fourth Amendment challenges, the district court first held that basic and advanced searches are both “non-routine” searches, and thus that both types of searches required reasonable suspicion…The court concluded that the basic search component of the Policies violated the Fourth Amendment.

The court also found two constitutional violations, reasoning that because the border search exception is premised on the government’s paramount interest in “stopping contraband at the border,” “the reasonable suspicion that is required … is … that the electronic devices contain[ ] contraband [itself],” rather than (a) evidence of contraband or (b) evidence or information regarding other crimes enforced at the border…Thus, the Policies were unconstitutional because they did not restrict agents to searches for contraband contained in the devices themselves and allowed border searches as to evidence of all crimes CBP or ICE are authorized to enforce.  The court also held that devices detained based on reasonable suspicion could be retained only for a “reasonable period that allows for an investigatory search for contraband.”

Court’s Ruling

In a decision written by U.S. Circuit Judge Sandra Lynch, while noting that the Fourth Amendment forbids “unreasonable searches and seizures”, citing Riley v. California (which stated that “a search is reasonable only if it falls within a specific exception to the warrant requirement”), the Court noted that “[o]ne such exception to the warrant requirement, recognized from early in our history, is the border search exception… The exception is grounded in the government’s ‘inherent authority to protect, and a paramount interest in protecting, its territorial integrity.’”  The Court rejected the plaintiffs’ reliance on Riley that the border search warrant exception does not encompass the search of electronic devices, stating: “In Riley, the Supreme Court held that the search incident to arrest exception to the warrant requirement did not extend to searches of cellphones.”

As for basic border searches without reasonable suspicion, the Court stated: “privacy concerns, however significant or novel, are nevertheless tempered by the fact that the searches are taking place at the border, where the ‘Government’s interest in preventing the entry of unwanted persons and effects is at its zenith.’”  As a result, the Court stated: “We thus agree with the holdings of the Ninth and Eleventh circuits that basic border searches are routine searches and need not be supported by reasonable suspicion.”

The Court also rejected the plaintiffs’ argument that border searches of electronic devices “must be limited to searches for contraband”, stating: “the border search exception is not limited to searches for contraband itself rather than evidence of contraband or a border-related crime. Searching for evidence is vital to achieving the border search exception’s purposes of controlling ‘who and what may enter the country.’”

With regard to the plaintiffs’ argument that the CBP and ICE Policies violate the Fourth Amendment because they do not impose an “effective limit on [the] duration” of electronic device detentions, the Court cited the CBP Policy that “requires a supervisor’s permission to detain a device after its owner leaves the border, a higher level of supervisory approval to extend a detention for longer than five days, and a third level of approval to extend a detention beyond fifteen days.”  The Court also stated: “What is reasonable is surely fact specific and future as applied attacks are not foreclosed should there be abuses.”

Finally, with regard to the plaintiffs’ argument that, under the First Amendment, government searches of electronic devices at the border require a warrant, or at least reasonable suspicion, the Court stated: “Neither this circuit nor the Supreme Court has specified the appropriate standard to assess alleged government intrusions on First Amendment rights at the border… Under any standard plaintiffs have not shown that the content-neutral border search Policies facially violate the First Amendment.”

As a result, the Court stated, in issuing its opinion: “In these cross-appeals we conclude that the challenged border search policies, both on their face and as applied to the two plaintiffs who were subject to these policies, are within permissible constitutional grounds. We find no violations of either the Fourth Amendment or the First Amendment. While this court apparently is the first circuit court to address these questions in a civil action, several of our sister circuits have addressed similar questions in criminal proceedings prosecuted by the United States. We join the Eleventh Circuit in holding that advanced searches of electronic devices at the border do not require a warrant or probable cause…We also join the Ninth and Eleventh Circuits in holding that basic border searches of electronic devices are routine searches that may be performed without reasonable suspicion…We also hold the district court erroneously narrowed the scope of permissible searches of such equipment at the border.”

So, what do you think?  Should border searches of devices be allowed without reasonable suspicion?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant, an Affinity partner of eDiscovery Today.

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