A Massachusetts federal court has ruled that immigration and customs officials must have reasonable suspicion of the existence of contraband before searching digital devices, a blow to those agencies’ policies which have led to countless journalists being subjected to invasive digital searches — without cause — for well over a decade.
In a lawsuit brought by eleven plaintiffs, including several journalists, the court held that U.S. Customs and Border Protection, as well as U.S. Immigration and Customs Enforcement violate the Fourth Amendment with policies which permit suspicionless searches of digital devices. One plaintiff who was a journalist was asked questions about his photos, emails and contacts, and another “was questioned about his work as a journalist. His phone contained journalistic work product, work-related photos and lists of contacts.”
The Fourth Amendment protects people from unreasonable searches and seizures of their property, among other rights. The right to be free from unreasonable searches usually means that a warrant is required for a search. However, there are a few exceptions to the warrant requirement, such as when someone is being arrested, certain searches of vehicles, and searches at the border entry points, including airports. The border search exemption is rooted in the government’s interest in preventing the entry of unwanted persons and contraband, combined with a reduced expectation of privacy at border entry points.
The eleven plaintiffs in this case alleged that CBP and ICE violated the Fourth Amendment when — per CBP and ICE policy — they searched the plaintiffs’ electronic devices, including cell phones and laptops, even though there was no reason to believe those devices contained contraband. The court agreed and held that because of both the quantity and the quality of the information stored on cell phones and other devices, a search of their contents is a much larger intrusion into privacy than what would be found in standard non-digital searches of things like suitcases and briefcases.
The court explained that “routine” searches of people and their possessions when entering the U.S. are still not subject to any requirements of reasonable suspicion, probable cause, or warrant. With respect to digital devices, a routine search might include a minimal search to confirm that a person is the actual owner of the device, but little more. However, “non-routine” searches — that is, searches that are more invasive, such as searching the contents of a digital device — require reasonable suspicion that the device contains contraband. Even a general suspicion of crimes unrelated to contraband would be insufficient to support the search under this standard.
In 2010, NPPA filed a lawsuit challenging the constitutionality of the Department of Homeland Security’s policies of suspicionless searches of laptops, cameras and cell phones. Unfortunately, that case was dismissed after that judge determined that reasonable suspicion was not required to conduct a search of an electronic device at the border. The judge in that case opined that rather than the government giving up its policy of searching digital devices, travelers should instead “think twice about the information you carry on your laptop.”
In the intervening years, however, the U.S. Supreme Court issued a ruling which clarified greater privacy protection for digital devices. That 2014 case, Riley v. California, changed the legal landscape with regard to searches of phones and computers, and cleared the way for greater privacy protections. In Riley, the Supreme Court held that the warrant exception which allows searches without a warrant when a person is being arrested, could not be used as an excuse to search a cell phone without a warrant. Because the reasoning behind the arrest exception to the warrant requirement relates to the safety of officers, the high court ruled that a cell phone search did not further the goals of that exception. A diminished privacy interest in situations like arrests and border crossings does not eliminate the Fourth Amendment warrant requirement entirely. NPPA was a part of a coalition of 20 media organizations that filed an amicus brief in Riley.
Now that the reasoning in Riley has been applied to searches at border and airport entry points, there must be reasonable suspicion that electronic devices themselves contain contraband, such as child pornography, in order for them to be searched without a warrant at the border.