The next time you want to enter the United States, a border agent can take your phone and review your private photos, text messages, and emails even if they have no reason to suspect you of any wrongdoing.
That’s what the First Circuit Court of Appeals recently held in Alasaad v. Mayorkas, a Fourth and First Amendment challenge to the government’s warrantless, suspicionless searches of electronic devices at the border. In a disappointing opinion, the Court declined to require a warrant or probable cause for device searches at the nation’s borders and rejected the lower court’s historic judgment that all electronic device searches at the border require at least reasonable suspicion that the device contains contraband.
Instead, the Court invited Congress to make any privacy enhancements it deems appropriate. Given the privacy interests at stake and the spike in device searches at the border, Congress should take them up on the offer and impose additional safeguards as soon as possible.
Alasaad Was Wrongly Decided
Customs and Border Protection (CBP) policy on searches of electronic devices differentiates between manual (basic) and forensic (advanced) searches. A manual search is one in which an official uses their fingers and eyes to search the device. In a forensic search, external equipment is connected to a device to review, copy, or analyze the contents.
According to the policy, CBP agents may conduct a manual search without any suspicion, and a forensic search upon a showing of “reasonable suspicion”—and even that low bar is subject to a national security exception that threatens to swallow that rule. Immigration and Customs Enforcement has a similar policy, and both agencies claim extensive authority to retain and share information from device searches.
CDT twice filed amicus briefs in Alasaad arguing that smartphones and laptops are not comparable to luggage or other items border agents encounter. They can contain weeks, if not years, of emails, text messages, videos, photos, browsing history, medical information and financial data. In other words, “the privacies of life.” Travel without these devices can be logistically difficult and financially or professionally impossible.
We argued in Alasaad that the First Circuit should reason from the Supreme Court’s decision in Riley v. California (2013) that probable cause should be required for searches of cell phones at the border. In Riley, the Supreme Court rejected the government’s claim that the police need no warrant to search the cell phone of every person they arrest because “searches incident to arrest” are excepted from the warrant requirement in the Fourth Amendment. The court declined to extend the exception to device searches because of the heightened privacy interest people have in the contents of their phones, and because searching the cell phones of people who are arrested does not serve the purposes of the “search incident to arrest” exception to the Fourth Amendment — officer safety, preservation of evidence, and prevention of escape. In Riley, the Supreme Court told law enforcement to “get a warrant,” and its reasoning, we argued, compels the same outcome in the context of border searches.
Unfortunately, the First Circuit Court of Appeals disagreed. The court declined to adopt a warrant or probable cause requirement, asserting without support that, “warrantless electronic device searches are essential to the border search exception’s purpose of ensuring that the executive branch can adequately protect the border,” and that a warrant requirement “would hamstring the agencies’ efforts to prevent border-related crime and protect this country from national security threats.”
We recognize the important responsibility of the government to safeguard the border, but the court here was too quick to defer to the government. The government hasn’t proven that its warrantless device searches are effective at serving any border protection goal, and hasn’t complied with statutory reporting requirements that would inform such an assessment.
Plus, modern technology has made the process of securing a warrant far less burdensome than it used to be, and the court failed to acknowledge the available exceptions to the warrant requirement that would address concerns about threats to national security.
In rejecting even an individualized suspicion requirement for manual device searches, the court adopted a narrow view of the privacy intrusion at the border, asserting that “the bottom line is that basic border searches of electronic devices do not involve an intrusive search of a person.” The court suggested that manual searches are a limited intrusion because officers cannot review encrypted data or deleted files, and because an agent must traverse the contents of a device by hand.
But these assertions fail to grapple with the amount and types of private and sensitive data that can be stored on devices (even in unencrypted form). Moreover, CBP policy does not limit the length of time for a manual border search—a search could last five minutes or five hours. The court dismisses this concern in a footnote stating that “the agencies must process the entry of over one million travelers per day, further restricting the practical limits of a basic search.” But even if the court were correct that CBP could not practically search every device thoroughly, that just means CBP agents are left with unbounded discretion to give cursory attention to some devices, while picking out others for lengthy searches for arbitrary or discriminatory reasons.
Congress Needs To Step In
Alasaad will likely be appealed, there are other pending legal challenges to device searches at the border, and the Department of Justice recently filed a petition for cert in U.S. v. Cano (Ninth Cir. 2019). So the courts aren’t done, but Congress can and should step in. Even the Alasaad Court acknowledged the legislature’s relative expertise:
“Congress is better situated than the judiciary to identify the harms that threaten us at the border…. In weighing the competing policy considerations, Congress or the Executive may choose to strike a different balance as to border searches of electronic devices and may choose to grant greater protection than required by the Constitution.”
The government’s policies, and the developing case law, give inadequate weight to the privacy interests of the traveler at the border. Numerous stories over the years reveal the unique vulnerability of individuals in ports of entry and demonstrate the need for checks on executive action.
Relying on the government to self-police border searches has not worked. Audits of CBP’s border search practices revealed that agents routinely violate CBP’s permissive border search policy. And device searches are rapidly growing: the number of CBP device searches more than doubled from 19,051 in FY 2016 to 40,913 in FY 2019.
Checks on device searches also will help address significant concerns about racial profiling at airports, as well as the potential for searches at the border to be abused to further law enforcement interests divorced from the purpose for which courts recognized a border exception to the Fourth Amendment.
Congress has previously demonstrated an interest in addressing this issue. In the last session, two bills were introduced to protect the traveling public against unnecessary searches of their digital devices. Senators Ron Wyden (D-Or) and Ron Paul (R-KY) introduced S. 1606, the Protecting Data at the Border Act, which would have generally required the government to get a warrant prior to searching the device of a U.S. person, while permitting law enforcement to get a warrant after the fact in emergency circumstances.
Senators Patrick Leahy (D-Vt) and Steve Daines (R-Mont) introduced S. 2694, A bill to place restrictions on searches and seizures of electronic devices at the border, which would have required a warrant as a prerequisite to an advanced search, and reasonable suspicion that the traveler violated an immigration or customs law and that the electronic device contained evidence relevant to the violation as a prerequisite to a manual search.
Congress should act now.
When it last held a hearing on this issue, Ranking Member, now Chairman of the Homeland Security and Government Affairs Committee (HSGAC), Senator Gary Peters, shared that his constituents fear unfair targeting and stated that, “Congress should weigh in and establish clear, constitutional rules and a means for ensuring that they are applied equitably.”
HSGAC or the Senate Judiciary Committee should convene a hearing on this issue soon and press CBP to publicly report information about its border searches, as required by law. Armed with that information, Congress will then be in a position to consider and enact legislation that imposes appropriate safeguards on border searches of electronic devices.
Journalists fear keeping their sources safe. Lawyers fear keeping their client information protected. Businesses fear the disclosure of proprietary information. Communities that face inappropriate racial and religious profiling at airports fear additional unwarranted intrusions into their privacy.
And everyday travelers carry with them information that is personal, sensitive, and that they don’t want the U.S. government arbitrarily reviewing, storing, and sharing. Congress needs to put in place protections that reflect 21st century travel sooner rather than later.