Business Law

Fed Court: Reasonable Suspicion Required for Search of Electronic Devices at Border

By Bennet Kelley

The number of electronic device searches at U.S. ports of entry has increased significantly. Last year, Customs and Border Control (CBP)Ā conductedĀ more than 33,000 searches, almost four times the number from just three years prior.Ā 

In a recent case that gained national attention, an immigration officer at Boston Logan Airport reportedly searched an incoming Harvard freshmanā€™s cell phone and laptop, reprimanded the student for his friendsā€™ social media postings expressing views critical of the U.S. government, and denied the student entry into the country following the search.

Under CBP and Immigration & Customs Enforcement (ICE) policies, reasonable suspicion or a national security concern was required only for “advanced” device searches where the external equipment was connected to the device to review, copy or analyze its contents.Ā  In 2017, the Electronic Frontier Foundation and American Civil Liberties Union filed suit in Massachusetts federal court against the heads of the Department of Homeland Security and its component agencies CBP and ICE (Alasaad v. McAleenan)Ā .

Among the plaintiffs was Zainab Merchant, a writer, graduate student and founder and editor of a media website.  CBP agents searched her phone and laptop, reviewed communications with her attorney, asked about one of her blog posts and then inspected the devices out of her presence for 90 minutes.

In granting summary judgment for plaintiffs, Judge Denise Casper explained that while a cursory search of an electronic deviceĀ reserved to determining whether a device is owned by the person carrying it across the border,Ā confirming that it is operational and that it contains data, would fall within the borderĀ search exception to the warrant requirement and not require a heightened showing of cause, that was not the case here given the extensive searches that were conducted.

As a result, the court concluded that

agents and officials must have reasonable suspicion to conduct any search of entrantsā€™ electronic devices under the ā€œbasicā€ searches and ā€œadvancedā€ searches as now defined by the CBP and ICE policies. This requirement reflects both the important privacy interests involved in searching electronic devices and the Defendantā€™s governmental interests at the border.

The ruling was hailed by the Electronic Frontier Foundation’s Sophia Cope, who stated that “this is a great day for travelers who now can cross the international border without fear that the government will, in the absence of any suspicion, ransack the extraordinarily sensitive information we all carry in our electronic devices.” 

Bennet Kelley (@InternetLawCent) is the founder of the Internet Law Center in Santa Monica.

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