Federal Judge Issues Historic Opinion for Digital Privacy at the Border

A federal judge significantly moved the needle on privacy at the border this week, recognizing that international travelers have strong privacy interests in their digital data and ruling that suspicionless electronic device searches at U.S. ports of entry violate the Fourth Amendment. U.S. District Court Judge Denise Casper in Boston held that border agents must have reasonable suspicion that a device contains digital contraband before searching or seizing the device.

The summary judgment opinion was issued in EFF and ACLU’s case Alasaad v. McAleenan, in which we represent 11 plaintiffs against the Department of Homeland Security (DHS), U.S. Customs and Border Protection (CBP), and U.S. Immigration and Customs Enforcement (ICE). The case is a constitutional challenge to the agencies’ polices on border searches and seizures of electronic devices.

CBP and ICE policies permit suspicionless manual or “basic” device searches. For forensic or “advanced” device searches, the policies require either a vague concern about national security, or reasonable suspicion that the device contains evidence of broadly defined wrongdoing. The policies also permit border agents to access any and all data resident on a device. The policies are based on easily distinguishable legal precedent that authorizes warrantless, suspicionless searches of luggage for border security purposes, specifically, immigration and customs enforcement. We argued, and Casper agreed, that electronic devices are not comparable to suitcases or purses in terms of the privacy interests at stake.

Casper’s ruling is an important win for digital privacy rights for three reasons.

First, she foreclosed wholly suspicionless or random searches, as well as searches based on a mere hunch of border agents. This should greatly reduce the number of innocent travelers swept up by CBP and ICE’s invasive device search practices. The “reasonable suspicion” standard adopted by Casper is not as strong as probable cause (the highest standard contemplated by the Fourth Amendment for searches and seizures), but it still has teeth. As she explained, border agents need “specific and articulable facts, considered together with the rational inferences that can be drawn from those facts” concerning whether a device contains digital contraband. (p. 34)

Second, Casper rejected the legal distinction other courts have made between manual and forensic device searches, and required individualized suspicion for both types of searches. This ensures that border agents cannot avoid a higher legal standard by simply conducting a manual search. In fact, we learned through discovery that most border device searches are manual searches. Casper recognized that the privacy interests at stake involve “an individual’s interest in the contents of his or her electronic devices,” and are not appreciably different depending on the method by which the devices are searched. (p. 24) She further wrote, “a basic search and an advanced search differ only in the equipment used to perform the search and certain types of data that may be accessed with that equipment, but otherwise both implicate the same privacy concerns.” (p. 29) She noted, specifically, that the plaintiffs’ devices when searched contained attorney-client communications, photos without religious attire, and journalism work product. (p. 25) Overall, she recognized the “vast privacy interests” that travelers have in their digital data. (p. 27)

Third, by limiting the permissible scope of all border device searches to only looking for digital contraband (e.g., child pornography, classified information, and counterfeit movies), Casper ensured that border agents cannot conduct highly intrusive fishing expeditions of travelers’ electronic devices. As we established through discovery, CBP and ICE invasively search devices at the border to find general evidence of wrongdoing, rather than to find and interdict contraband. But only contraband interdiction, not discovery of evidence, is a permissible purpose of the border search exception to the Fourth Amendment’s warrant and probable cause requirements. (p. 18) Casper’s decision is consistent with other courts that have recognized the narrow justifications for border searches. Casper further explained that the government put forth a “dearth of information of the prevalence of digital contraband entering the U.S. at the border.” Thus, she concluded that requiring a higher standard to search electronic devices would not “obviate the deterrent effect of the border search exception.” (p. 21)

In going further than any previous judge in protecting digital privacy at the border, Casper relied on a strong body of case law showing that “the legal tide is turning” toward greater protections for international travelers. (p. 36)

Casper’s reasoning applies not just to U.S. persons (citizens and lawful permanent residents), but also to foreign visitors. She issued a broad ruling: “[T]he Court declares that the CBP and ICE policies for ‘basic’ and ‘advanced’ searches, as presently defined, violate the Fourth Amendment to the extent that the policies do not require reasonable suspicion that the devices contain contraband….” (pp. 46-47) Additionally, she dismissed the government’s argument that suspicionless border device searches are needed to determine whether foreign nationals arriving at the border are inadmissible to the U.S.: “the record is not clear as to what evidence of [inadmissibility] would be revealed by a search of a traveler’s electronic device.” (She strongly rejected this argument for Americans, too, who are automatically admissible to the country.) (p. 20) However, it remains to be seen how DHS will implement this ruling as to foreign nationals who visit the U.S., and what will happen on any appeal in this case.

The judge unfortunately rejected our argument that the Constitution requires a warrant based on probable cause for border device searches. We still believe this should be the rule, given the unprecedented privacy interests travelers have in their digital data, and the lack of evidence that digital contraband is prevalent at the border or that interdicting it on devices materially prevents its entry into the U.S. given the existence of the Internet. Nevertheless, this week’s historic ruling is highly pro-privacy and protects travelers and their highly sensitive data.