Lawsuit Challenging Searches and Seizures of Electronic Devices at Border — Law Office of Thomas V. Allen, PLLC.

Law Office of Thomas V. Allen, PLLC.

Plaintiffs, ten U.S. citizens and one lawful permanent resident, filed a lawsuit in federal court challenging searches and seizures of smartphones, laptops, and other electronic devices at the U.S. border on First Amendment and Fourth Amendment grounds. (Alasaad v. Trump, 9/13/17).  Plaintiffs are ten U.S. citizens and a lawful permanent resident who regularly travel outside the country with their electronic devices and intend to continue doing so. Federal officers seized and searched Plaintiffs’ electronic devices at U.S. ports of entry without probable cause to believe that the devices contained contraband or evidence of a violation of immigration or customs laws.

This lawsuit challenges searches and seizures of smartphones, laptops, and other electronic devices at the U.S. border in violation of the First and Fourth Amendments to the U.S. Constitution. U.S. Customs and Border Protection (“CBP”) and U.S. Immigration and Customs Enforcement (“ICE”) search travelers’ mobile electronic devices pursuant to policies that do not require a warrant, probable cause, or even reasonable suspicion that the device contains contraband or evidence of a violation of immigration or customs laws. Today’s electronic devices contain troves of data and personal information that can be used to assemble detailed, comprehensive pictures of their owners’ lives. Because government scrutiny of electronic devices is an unprecedented invasion of personal privacy and a threat to freedom of speech and association, searches of such devices absent a warrant supported by probable cause and without particularly describing the information to be searched are unconstitutional.

The number of border searches of electronic devices by CBP and ICE has been growing rapidly. According to CBP data, CBP conducted 14,993 electronic device searches in the first half of fiscal year 2017, meaning that CBP is on track to conduct approximately 30,000 searches this fiscal year, compared to just 8,503 searches in fiscal year 2015.7 If the rate of searches continues to grow, CBP may conduct even more searches in the next fiscal year.

“Manual” and “Forensic” Searches:

The searches of electronic devices that border officials conduct can be (a) “manual,” (b) “forensic,” or (c) both manual and forensic searches for a single device. During manual searches, officers review the contents of the device by interacting with it as an ordinary user would, through its keyboard, mouse, or touchscreen interfaces.  Plaintiffs alleges that given the great volume and detail of personal information that electronic devices contain, and the ease of manually navigating them, manual searches are extraordinarily invasive of travelers’ privacy. With little effort, an officer without specialized training or equipment can conduct thorough manual searches, including by opening and perusing various stored files, programs, and apps, or by using a device’s built-in keyword-search function. The device searches at issue in Riley, which the Supreme Court held were unlawful without a search warrant based on probable cause, were manual searches.

In a forensic search, border officials use sophisticated tools, such as software programs or specialized equipment, to evaluate information contained on a device. Although there are different types of forensic searches, many of them begin with agents making a copy of some or all data contained on a device. Forensic tools can capture all active files, deleted files, files in allocated and unallocated storage space, metadata related to activities or transactions, password-protected or encrypted data, and log-in credentials and keys for cloud accounts. They also are able to capture the same kinds of information that can be viewed in a manual search. Officials then can analyze the data they have copied using powerful programs that read and sort the device’s data even more efficiently than through manual searches.

Searches of electronic devices by CBP and ICE, regardless of the method used, are extraordinarily invasive of travelers’ privacy, given the volume and detail of highly sensitive information that the devices contain.  Searches of electronic devices also impinge on constitutionally protected speech and associational rights, including the right to speak anonymously, the right to private association, the right to gather and receive information, and the right to engage in newsgathering. CBP officers often use the coercive nature of the secondary inspection environment to compel travelers to unlock their devices or disclose their device passwords. Officers also threaten to confiscate travelers’ devices if they decline to provide access to the devices. CBP officers even resort to physical force in order to conduct electronic device searches. For example, when one of the Plaintiffs refused to hand over his phone after having done so three days earlier at the same port of entry, three CBP officers physically restrained him and took his phone. One officer squeezed his hand around Plaintiff’s throat, which caused him great pain and emotional distress.

When travelers decline to comply with government officers’ orders to unlock their devices or provide their device passwords, officers often respond by confiscating those devices. These confiscations can last for months.

CBP and ICE policies expressly authorize warrantless and suspicionless searches and confiscations of electronic devices at the border. The 2009 CBP and ICE Policies authorize border officials to search travelers’ electronic devices without a warrant or any basis for suspecting that the devices contain contraband or evidence of a violation of immigration or customs laws. Nor do the policies require that travelers consent to searches of their devices. The wfv 2009 Policies permit warrantless and suspicionless searches of content that raises heightened privacy concerns.  The 2009 CBP and ICE Policies authorize confiscation of travelers’ electronic devices for weeks or months at a time in order to effectuate searches after travelers leave the border, without probable cause or any basis for suspecting that the devices contain contraband or evidence of a violation of immigration or customs laws. Nor do the policies require that travelers consent to confiscation of their devices.

Search violates the First and the Fourth Amendment rights:

Plaintiffs and other travelers have a reasonable expectation of privacy in the content their electronic devices contain, in the content, they store in the cloud that is accessible through their electronic devices, in their device passwords, and in the nature of their online presence and their social media identifiers. Plaintiffs, and the many other travelers who cross the United States border every year with electronic devices, will be chilled from exercising their First Amendment rights of free speech and association, in knowing that their personal, confidential and anonymous communications and expressive material may be viewed and retained by government agents without any wrongdoing on their part. CBP & ICE violates the Fourth Amendment by searching the content that electronic devices contain, absent a warrant supported by probable cause that the devices contain contraband or evidence of a violation of immigration or customs laws, and without particularly describing the information to be searched.  It is high time that the courts should act and stop these arbitrary and capricious acts of the agencies and stop the violations of the constitutional rights of its citizens.

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