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In a recent opinion, the United States Court of Appeals for the First Circuit affirmed the constitutionality of so-called basic or routine searches of electronic devices at the border absent a warrant, probable cause or even reasonable suspicion. Given the volume and sensitivity of information increasingly stored on phones and other devices, the courts opinion offers a reminder that personal privacy is at significant risk when traveling abroad or returning home.

Background

The appeal in Alasaad v. Mayorkas, Nos. 20-1077, 20-1081, 2021 U.S. App. LEXIS 3586 (1st Cir. Feb. 9, 2021), involved a civil suit in which ten US citizens and one lawful permanent resident sought declaratory and injunctive relief, alleging that officers from the US Customs and Border Protection Agency and the US Immigration and Customs Enforcement Agency (together, the Agencies) searched their respective electronic devices at the nations ports of entry without a warrant, probable cause or reasonable suspicion pursuant to the Agencies own internal policies (the Policies).

Beginning in 2018, the Policies defined both basic and advanced searches of electronic devices. A so-called advanced search is any search of an electronic device conducted in order to review, copy or analyze its contents, which may involve the use of external equipment. It may also extend to deleted or encrypted files. To justify such a search, the Agency must have reasonable suspicion that the search will yield evidence of criminal activity.

By contrast, a so-called basic search is relatively limited in duration, must be conducted manually (ie, without the use of external equipment) and does not extend to deleted or encrypted files. As the District Court noted, the basic searches at issue lasted approximately 45 minutes and involved the viewing of emails and text messages. The Agency may conduct such a search without any suspicion of criminal activity. Notably, the Policies require for both basic and advanced searches that the device must be disconnected from the internet before the search can commence.

Each of the plaintiffs alleged that, at various ports of entry (mostly international airports), they had their laptops or smartphones temporarily seized, and their contents searched, by Agency personnel without any warrant, probable cause or articulable degree of suspicion. In most cases, the individuals provided their passwords after what they understood to be orders to do so.

First Circuits opinion

After the lower court granted in part and denied in part the plaintiffs motion for summary judgment, the First Circuit considered the plaintiffs arguments grounded in both the Fourth and the First Amendments de novo. Specifically, the plaintiffs argued that (i) all electronic device searches at the border require a warrant, and that, in the alternative, (ii) all electronic device searches at the border require, at least, reasonable suspicion that the device contains contraband.

The plaintiffs primarily based their challenge on the US Supreme Courts opinion in Riley v. California, 573 U.S. 373, 382 (2014), which held that a warrantless search incident to arrest cannot extend to the electronic contents of a cell phone. Riley, however, did not involve an arrest or search at the border.

For the reasons further detailed below, the First Circuit rejected all of the plaintiffs arguments.

Basic electronic device searches at the border require neither warrants nor reasonable suspicion

The court quickly dispatched the plaintiffs argument that either a warrant or probable cause is necessary to conduct any search. It began by placing the searches at issue squarely within the border search exception to the general warrant requirement. Previously endorsed by the US Supreme Court, this exception is grounded in the governments inherent authority to protect its territorial integrity. In fact, the expectation of privacy at the border is markedly lower than the expectation of privacy in the nations interior.

The court further explained that, given the volume of travelers passing through the nations borders, warrantless electronic device searches are essential. More specifically, it opined that the Executive Branch will only be able to adequately protect the border if it is not subject to the warrant requirement because the resulting delays would necessarily hamstring its efforts to protect the country from national security threats.

In turning to the next level of justification reasonable suspicion the court analogized basic searches under the Policies to routine searches of other property at the border which the Supreme Court has previously held can be performed without any degree of suspicion. In the First Circuit, permissible routine property searches have been held to include, for example, the compelled removal of an outer layer of clothing. See United States v. Braks, 842 F.2d 509, 513 (1st Cir. 1988). By contrast, however, a search that is not routine, such as an advanced search under the Policies, must be justified by, at least, reasonable suspicion. Whether a search is routine or non-routine has traditionally been a fact-specific inquiry.

The court distinguished prior opinions (like the Supreme Courts decision in Riley) that have remarked upon the significant privacy interests necessarily affected by electronic device searches in non-border contexts, from such searches when they occur at the border. The court stated that, there, the governments interest in preventing the entry of unwanted persons and effects is at its zenith. Accordingly, the First Circuit concluded that searches may include looking for evidence of crimes, thereby rejecting the plaintiffs request to simply limit them to contraband.

After explaining the limits of Fourth Amendment protection, the court noted that Congress and the Executive Branch are certainly free to grant individuals greater protection than that afforded by the Constitution.

No express limit set as to duration of detention of devices searched

The court declined to set a bright-line rule as to the appropriate duration of a devices seizure, remarking that the plaintiffs did not present any facts about the actual length of the detentions at issue. Instead, the court indicated that the relative reasonableness of the duration will be decided on a case-by-case basis.

Notably, however, the Policies require supervisory approval to extend a device detention beyond 5 days (under the Customs and Border Patrol Policy) and 30 days (under the Immigration and Customs Enforcement policy). Such approval is also necessary if the devices are to depart from the location of their initial detention. As to the scope of the initial search, the Policies state only that a basic search must be both brief and reasonable.

The First Amendment does not provide any additional protection in this context

The plaintiffs also asserted that these searches mandated the compelled disclosure of expressive information, thereby violating the First Amendment. After remarking that neither the First Circuit nor the US Supreme Court has identified an appropriate standard through which First Amendment intrusions at the border might be assessed, the court rejected this challenge as well. In doing so, the court focused on the fact that the Policies are content-neutral. It also reiterated the governments paramount interests in protecting the nations border.

The plaintiffs argument that a higher level of suspicion would be required to search expressive material was similarly rejected. Citing Ninth Circuit precedent, the court explained that drawing such a distinction for expressive material would be unworkable in practice and would potentially protect important terrorist communications.

The court expressly left open the question of whether the outcome of a First Amendment challenge to the Policies would be different if there were reason to believe that the agencies were specifically targeting journalists.

Key takeaways

The First Circuits opinion underscores the risks that one takes when entering the country while in possession of sensitive material and information.

Significantly, the court expressly passed on deciding whether the disclosure of the plaintiffs passwords the circumstances surrounding which varied widely among the plaintiffs was constitutional. Therefore, it is at least likely that using passwords will continue to provide some protection, at least from such basic searches in the absence of reasonable suspicion. Ultimately, if no level of suspicion that the contents of the phone might contain evidence exists, the Policies would preclude an advanced search. In this circumstance, it is quite difficult to envision a scenario in which the agents could access a phones contents absent an individuals voluntarily providing their password.

Additionally, in non-border contexts, other jurisdictions have deemed it violative of the Fourth Amendment to compel individuals to provide their passwords without cause, and a petition for a writ of certiorari is currently pending before the Supreme Court concerning whether the Fifth Amendment protects an individual from being compelled to disclose a passcode. See Petition for Writ of Certiorari, Andrews v. New Jersey, (No. 20-937). However, given its highly permissive view of border searches, the First Circuit could theoretically distinguish such holdings in the future in that specific context.

As noted above, under the Agencies Policies at issue in Alasaad, a basic search must be conducted manually, must be limited in time and scope, and must occur only at the location of the seizure. Therefore, it seems unlikely that Agencies could access an individuals locked data if the devices owner does not voluntarily unlock the device, or alternatively provide its password. And, under the Policies, if more complex methods of accessing the contents of a device are to be employed, then an articulable degree of suspicion is likely required because that would probably entail an advanced search.

Of course, although perhaps easier said than done, travelers can protect themselves and their employers by taking certain precautions:

In sum, while the courts opinion in Alasaad authorizes expansive search authority at the border, some common-sense protective measures should offer travelers, employees and employers some comfort.

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Court of Appeals affirms broad government authority to conduct warrantless searches of electronic devices at the border - Lexology