Criminal Justice Insider

An in-depth review and analysis and of emerging topics in both federal and New York State criminal law. This blog explores developments in substantive and procedural criminal law, providing practical insights to the latest case law and statutory changes.

Passports and Passwords: New Limitations on Warrantless Searches of Electronic Devices at the Border

11.14.2019

In prior blog posts, I have discussed the increasingly common occurrence of warrantless searches of electronic devices at international borders. In 2018, New Zealand made international news when it passed a law requiring travelers seeking to enter the country to unlock their digital devices for inspection. Though the media thought this policy newsworthy, U.S. Customs and Border Patrol (“USCBP”) has long maintained that it could force travelers seeking entry into the United States to do the same.

USCPB was able to credibly maintain that position until November 12, 2019. On the twelfth, the Honorable Denise Casper of the Federal District Court for the District of Massachusetts ruled that warrantless searches of electronic devices at the border by USCBP agents are an unconstitutional violation of the Fourth Amendment prohibition on warrantless searches and seizures.

The case, Alasaad, et. ano. v. Nielsen, et. al., Case No. 17-cv-11730(DJC) was brought by eleven travelers seeking to enter the United States. Ten of these plaintiffs were U.S. citizens who claimed that the USCBP searched their electronic devices, including smartphones and laptops, without a suspicion of wrongdoing or a judicial warrant. The plaintiffs were supported by the American Civil Liberties Union and the Electronic Frontier Foundation.

There has long been an exception to the Fourth Amendment prohibition on warrantless searches when it comes to the international border. As the Supreme Court observed in U.S. v. Ramsey, 431 U.S. 606 (1977), the Government has a paramount interest in securing its borders against criminal activity and contraband. This interest supports an exception for warrantless searches. However, the District Court, in deciding Alasaad, recognized that the border search exception is not unlimited. It is grounded in the notion that international travelers have a lower expectation of privacy at the border, but not a total lack of privacy.

In its detailed analysis, the Court determined that the typical justifications for warrantless searches at the border do not readily apply to electronic devices. For example, the Court reasoned that it was unlikely that contraband itself would be discovered on a traveler’s smartphone. It was equally unlikely that the results such searches would bear on decision as to whether a citizen of the United States, like ten of the eleven plaintiffs, could reenter the country.

Ultimately, the court found that USCBP officials do not have unlimited discretion to search an electronic device at the international border. Instead, the agents must have a reasonable suspicion of illegal conduct before conducting a warrantless search of an electronic device. The agents must be able to point to specific and articulable facts which create an inference of suspicion before a warrantless search of an electronic device can be conducted at the border.

Prior to the decision in Alasaad, no court had articulated the standard for a search of an electronic device at the U.S. Border. Accordingly, this decision represents a sea change in border enforcement and search and seizure jurisprudence. However, this decision is hardly expected to be the last word on this topic. The courts will soon be tasked with determining what facts coalesce to create the “reasonable suspicion” required to justify such a warrantless border search of an electronic device. We will continue to follow this important and emerging topic in the coming months as the law develops.

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11.14.2019  |  PRACTICE AREAS: Litigation and Dispute Resolution

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