Courts Step in to Protect Constitutional Rights at the Border

Written by Greg Nojeim, Mana Azarmi

Twice this week courts have pushed back against suspicionless, warrantless searches of digital devices at the border, in Alassad v. Neilsen in the First Circuit and United States v. Kolsuz in the Fourth Circuit. In both cases plaintiffs argued that warrantless searches of their digital devices at the border violated their Fourth Amendment rights. Alassad survived a motion to dismiss and the the federal appellate court in Kolsuz determined that under the Fourth Amendment, U.S. border authorities cannot conduct an “advanced search” of travelers’ cell phones and other electronic devices without individualized suspicion of wrongdoing.

Alassad v. Neilsen

CDT filed an amicus brief in Alassad, arguing that suspicionless, warrantless border searches of electronic devices such as laptops and cell phones violate the First and Fourth Amendments to the Constitution. Our brief highlighted that “digital is different,” or that the sheer volume and type of information found on a digital device dwarfs that which can be found in a search of a traveler’s luggage. The Court, in its rejection of the motion to dismiss, cited to our amicus brief on this proposition. Current U.S. Customs and Border Protection (CBP) policy on searches of digital devices differentiates between “basic” (manual) and “advanced” (forensic) searches, which involve connecting external equipment to a device to review, copy, or analyze the contents. CBP agents may conduct a “basic” search absent any suspicion, and an advanced search upon a showing of “reasonable suspicion,” however there is a major exemption for searches conducted pursuant to national security. U.S. Immigration and Customs Enforcement (ICE) policy allows agents to perform either type of search absent any suspicion. The government relies on dated case law that allowed suspicionless searches of luggage to support the argument that the border search exception to the Fourth Amendment’s warrant requirement should extend to searches of digital devices.

Plaintiffs in Alassad, represented by the ACLU and EFF, argued that the warrant requirement at the border is supported by the Supreme Court’s 2014 opinion in Riley v. California, which required police to get a warrant before searching the cell phone of a person placed under arrest. While the government tried to cabin Riley to “searches incident to arrest,” the Court pushed back, noting that it “is not persuaded that Riley’s reasoning is irrelevant here” and that rather it “may [] carry some persuasive weight in the border search context.” Indeed, referencing Riley, the Court explained that “electronic device searches are, categorically, more intrusive than searches of one’s person or effects. The ability to review travelers’ cell phones allows officers to view ‘nearly every aspect of their lives—from the mundane to the intimate.’”

The border search doctrine is dated, and courts need to step in to protect our constitutional rights at the border. Thankfully, twice this week, courts did just that.

While the Court did not determine what standards should govern these searches at this point in the litigation, it did significantly observe that in Riley “the Supreme court rejected the reasonable suspicion standard when it came to cell phones because it ‘would prove no practical limit at all when it comes to cell phone searches.’ Digital device searches at the border, perhaps even when supported by reasonable suspicion, raise the same concerns.”

The Court concluded that it “is not persuaded that Plaintiffs have failed to state a plausible Fourth Amendment claim here. Although Defendants may be correct that the border is different, the Supreme Court and First Circuit have acknowledged that digital searches are different too since they ‘implicate privacy concerns far beyond those implicated’ in a typical container search. In the absence of controlling precedent to the contrary, this Court cannot rule that this Fourth Amendment principle would not extend in some capacity to the border.”

The Court, in rejecting the government’s motion to dismiss,  has signaled towards some level of protection being afforded to digital devices at the border. A final decision requiring even ‘suspicion’ prior to an advanced search would render ICE’s current policy unconstitutional in the First Circuit. However, the Court’s decision at this stage of the litigation does not clearly determine how the CBP’s current policy will be impacted.

United States v. Kolsuz

In the Fourth Circuit Court of Appeals, Kolsuz was another victory for our civil liberties at the border. Hamza Kolsuz was detained attempting to board a flight to Turkey because Customs agents found firearms parts in his luggage. After he was arrested his smart phone was confiscated and subjected to an advanced search, without a warrant. Kolsuz challenged this search, arguing that because the privacy interest in a digital device is so strong, an advanced search could only be justified by a warrant based on probable cause.

In its opinion, the Court agreed with Kolsuz’s assertion about the privacy interests in digital devices, writing that the “sheer quantity of data stored on smartphones and other digital devices dwarfs the amount of personal information that can be carried over a border–and thus subjected to a routine border search–in luggage or a car.” The Court continued, “[t]he uniquely sensitive nature of that information matters, as well. Smartphones and laptops ‘contain the most intimate  details of our lives’… and also may provide access to data stored remotely.” Therefore, the Court held, “a forensic border search of a phone must be treated as nonroutine, permissible only upon a showing of individualized suspicion.”

The Court decided that it did not need to reach the question of whether reasonable suspicion is sufficient to justify these advanced searches, or if there needs to be a warrant based on probable cause. Instead, it ruled that because agents had relied on established precedent in conducting the search, the good faith exception to the exclusionary rule permitted the evidence seized to be used in this case. Going forward, the rule the Court established will be applied in the Fourth Circuit. The Court also did not address whether this standard should apply to basic searches.

As a result of this holding, ICE’s policy on searches of digital devices at the border, which does not require suspicion prior to an advanced search, is unconstitutional in the Fourth Circuit. CBP’s policy, which requires “reasonable suspicion” for advanced searches, may survive, as the Court did not specify what level of suspicion is required for advanced searches.

The border search doctrine is dated, and courts need to step in to protect our constitutional rights at the border. Thankfully, twice this week, courts did just that.

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