Can they really search my phone?: CBP, ICE, and the Suit at the Center of Electronic Device Searches at the Border.

We all know that Customs and Border Patrol (CBP) and Immigration and Customs Enforcement (ICE) can search through your luggage at the border, including at the airport. But just what level of suspicion do CBP and ICE and need to search travelers’ phones, tablets, and laptops at the border?

What if the traveler is an attorney, with client-privileged communications on the device? Or a journalist, with information from confidential sources? Can CBP and ICE conduct searches that have seemingly nothing to do with national security?

These and other sticky questions of privacy and policy are now before a District of Massachusetts court, on plaintiffs’ motion for summary judgment in the hotly watched Alasaad v. McAleenan.

Plaintiffs, who include two journalists, a NASA engineer, a computer programmer, and a nursing student, among others, were subject to warrantless searches of their electronic devices by ICE and/or CBP. The Electronic Frontier Foundation and the ACLU sued on their behalf, survived the agencies’ motion to dismiss, and filed last week for summary judgment.

At issue are the CBP and ICE official polices that allow officers to conduct “basic” searches (searches where officers peruse the devices’ contents without the aid of external extraction devices) on travelers’ electronics with no suspicion, as well as policies that allow for more “advanced” warrantless searches (with external devices and some level of suspicion).

In practice, as plaintiffs have now established through discovery, CBP and ICE conduct suspicionless searches of the devices of travelers who are suspected of crimes that have little to do with border security—like violating tax laws, hiding assets in ban

Both CBP and ICE openly admitted that these searches are informed by information or requests from outside agencies, like the FBI, IRS, and State Department.

There is no maximum time limit for device confiscations and both agencies’ policies allow them to share whatever they find with other law enforcement agencies. These searches have expanded exponentially in recent years—CBP searched 33,295 devices in 2018,

Here’s an example of how this could all play out. The CBP, at the FBI’s direction, could stop a small business owner suspected of tax fraud, confiscate his or her laptop and phone, keep them for days, and search through emails and files—all without warrant or reasonable suspicion—the next time he or she lands at Dulles after a trip abroad. CBS could then pass on what they find to the FBI.

And because the agencies don’t limit these searches to the devices of the subjects of interest, that same business owner’s partner’s devices could be searched the next time he or she returns from a trip abroad.

So what do plaintiffs hope to get out of the suit? Ideally, a ruling that any border search of an electronic device must be conducted pursuant to a warrant, and based on probable cause.

Given the national security concerns at the border, it’s unclear if the district court will be willing to go that far.

But I don’t think I’d be going out on a limb to say that the district court may well strike down certain aspects of the policies and practices, like the suspicionless searches, searches at the direction of other agencies, and searches of non-target travelers’ devices—all of which appear in the May 4th Washington Post editorial board’s op-ed, which sounds off on the “alarming” revelations from the litigation.

How far the court is willing to go is likely to turn on how much the court sees the unanimous 2014 Supreme Court opinion in Riley v. California (which held officers can’t conduct a warrantless search incident to arrest of a cell phone) as applying here. As Riley recognized, a laptop or phone or tablet holds “many of the privacies of American life” and is far different from something like a backpack or a suitcase when it comes to the Fourth Amendment. Ever since, courts nationwide have been grappling with just how far Riley’s reasoning reaches.

Whatever lines the court may draw, this litigation makes clear that as technology progresses and as we change the way we conduct our business and personal affairs, the harder the Fourth Amendment questions become for the courts. The Alasaad decision is bound to be an important one, with big implications for travelers, Fourth Amendment advocates, and privacy litigants alike.

May 14, 2019

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