Alasaad v. McAleenan, No. 17-cv-11730-DJC (D. Mass Nov. 12, 2019).
On November 12, 2019, Judge Casper of the U.S. District Court for the District of Massachusetts held that suspicionless searches of electronic devices at the border violate the Fourth Amendment, in what the ACLU is calling “a major victory for privacy rights.” The suit, Alasaad v. McAleenan, was filed by the American Civil Liberties Union, the Electronic Frontier Foundation, and the ACLU of Massachusetts on behalf of 11 travelers whose laptops and smartphones were searched at U.S. ports of entry without individualized suspicion. Of the 11 plaintiffs, 10 were United States citizens. The court raised the bar for border seizures, requiring that border officers show an individualized suspicion before the seizure and examination of an electronic device.
While the Fourth Amendment prohibits certain searches and seizures without a warrant, from its inception, courts have held there to be a “border exception,” interpreted to allow examination of “persons and property crossing into this country” without a warrant or even individualized suspicion. The exception dates back to the Collection Act of 1789, authorizing the boarding and search of ships. The border exception is why Customs and Border Protection (“CBP") officers can search a bag at the airport. In 2018, CBP conducted more than 33,000 searches of personal electronic devices.
Starting in 1789 and for the next 200 or so years, the reach of the border exception was limited to the physical objects a searchee was transporting. The risk to privacy, however, has changed with the advent of the personal computer, portable hard-drives, laptops, and finally the smartphone. Seizing a smartphone allows access to a vast amount of personal information, but at the border, seizure may require no warrant, no probable cause, and no suspicion. In the digital age, privacy concerns have brought the border exception and other exceptions to the warrant requirement under increased scrutiny.
Alasaad builds on a series of cases that have chipped away at both the border exception and the routine status of forensic searches of personal electronics. In particular, the Alasaad court relies on the landmark 2014 Supreme Court decision Riley v. California, 573 U.S. 373 (2014). In Riley, the Court held that the “search incident to arrest” exception, allowing warrantless searches after arrests, did not justify dispensing with the warrant requirement for searches of digital data on arrestees’ cell phones. The Court balanced the interests of the government against the rights of the searchee, holding that the “extraordinary” privacy concerns outweigh the risk of destruction of evidence and other considerations. The court in Alasaad holds, “[t]he Court’s reasoning in Riley holds the same force when applied to border searches.”
The Alasaad court also cites United States v. Kolsuz, 890 F.3d 133 (4th Cir. 2018), and United States v. Kim, 103 F. Supp.3d 32 (D.D.C. 2015). These offspring of the Riley decision hold that searches of personal electronics are non-routine searches (as are strip searches and forced x-rays) and thus held to a higher standard of individual suspicion than is a routine search (such as examining a bag). The court further cites United States v. Montoya de Hernandez, 473 U.S. 531 (1985), holding that the full effect of the border exception does not apply to non-routine searches, which at least require reasonable suspicion. The court concluded that the border exception thus does not apply to the search of personal electronics.
The Alasaad decision joins the Fourth Circuit and Ninth Circuit in requiring at least a reasonable suspicion to conduct a forensic search of an electronic device at the border, in what has become a growing circuit split. The Eleventh Circuit took the opposing stance in United States v. Touset, 890 F.3d 1227 (11th Cir. 2018), holding that “searches at the border of the country ‘never require probable cause or a warrant,’” determining that Riley was not applicable because that case did not involve the border exception. The Eleventh Circuit dismissed privacy concerns based upon either the quantity or personal nature of data stored on an electronic device. Rather, the court was of the view that, “[i]f anything, the advent of sophisticated technological means for concealing contraband only heightens the need of the government to search property at the border unencumbered by judicial second-guessing,” citing the necessity of searches of electronic devices to prevent the dissemination of child pornography. While the court in Alasaad denied without prejudice the plaintiffs’ request for injunctive relief and expungement of the information gathered from searches of plaintiffs’ devices, the ACLU is optimistic that the ruling will lead to changes in federal practices. “By putting an end to the government’s ability to conduct suspicionless fishing expeditions, the court reaffirms that the border is not a lawless place and that we don’t lose our privacy rights when we travel,” said Esha Bhandari, staff attorney with the ACLU.