In a closely watched decision, the US Court of Appeals for the First Circuit confirmed the government’s expansive authority to search cell phones, laptops, and other electronic devices at the border. On February 9, 2021, the First Circuit held that the US Department of Homeland Security’s internal policies for searching individuals’ electronic devices when they travel across the US border are constitutional.1 Under the precedent set by Alasaad v. Wolf, border agents can (i) search electronic devices without a warrant or probable cause; (ii) conduct certain types of searches even if they do not have reasonable suspicion; (iii) search electronic devices for evidence of contraband or other crimes enforced by the US Department of Homeland Security (DHS); and (iv) detain an electronic device after the traveler crosses the border.
On September 13, 2017, eleven individuals—ten US citizens and one lawful permanent resident— whose phones were seized and searched at the border sued DHS, US Customs and Border Protection (CBP), and US Immigration and Customs Enforcement (ICE) alleging that their policies governing searches of electronic devices are unconstitutional.2 Plaintiffs argued that these policies violate the Fourth and First Amendments because they allow border agents to search electronic devices, which carry large quantities of personal data, without first obtaining a warrant.3 Plaintiffs sought to enjoin DHS, CBP, and ICE from searching electronic devices at the border as permitted by their respective internal policies.4
CBP’s and ICE’s policies differentiate between “basic searches” and “advanced searches.” During an advanced search, border agents use electronic equipment with a wired or wireless connection “not merely to gain access to the device, but to review, copy, and/or analyze its contents.” The CBP policy permits border agents to conduct an advanced search if they obtain supervisory approval, and only if there is reasonable suspicion that the person has violated laws enforced or administered by CBP or there is a national security concern.
By contrast, border agents can conduct a basic search – which is defined to mean any non-advanced search – “with or without suspicion.” During a basic search, border agents are limited to manually reviewing the content on the electronic device using its “native operating system.” The policies do not allow border agents to view encrypted or deleted files during a basic search.
For both basic and advanced searches, border agents can search only for information located on the device, and the device must be disconnected from the internet. Electronic devices may be detained for a “reasonable” period of time while a search is being conducted.
In Alasaad, plaintiffs argued that CBP’s and ICE’s policies violate the Fourth Amendment because they allow border agents to search electronic devices without a warrant. The district court rejected plaintiffs’ arguments, holding that the “border search exception” allows border agents to conduct searches without first obtaining a warrant and noting that no court has required border agents to obtain a warrant before they search an electronic device. The First Circuit agreed that border agents do not have to obtain a warrant or have probable cause to conduct basic or advanced searches at the border.
Plaintiffs also argued that CBP’s and ICE’s policies are unconstitutional because they allow border agents to conduct basic searches without reasonable suspicion. The district court agreed with plaintiffs, holding that CBP’s and ICE’s policies violated the Fourth Amendment because, like advanced searches, basic searches are “non-routine” and therefore require reasonable suspicion.
However, the First Circuit disagreed and held that the policies are constitutional: border agents do not need reasonable suspicion before they conduct a basic search of an electronic device. The First Circuit explained that plaintiffs’ “privacy concerns, however significant or novel, are nevertheless tempered by the fact that the searches are taking place at the border, where the ‘Government’s interest in preventing the entry of unwarranted persons and effects is at its zenith,’…and the Fourth Amendment balance of interests leans heavily to the Government.”
Evidence of contraband
Plaintiffs then argued that the policies are unconstitutional because they allow border agents to search electronic devices when seeking evidence of contraband or other crimes enforced at the border, and the border search exception limits searches to contraband itself. The district court agreed, finding that border agents should be restricted to searches for contraband contained in the devices themselves.
The First Circuit, however, held that the district court erroneously narrowed the circumstances in which border agents could search electronic devices, and found that border agents could conduct searches of electronic devices to identify evidence of contraband or a border-related crime. Notably, the First Circuit acknowledged that its decision does not comport with the Ninth Circuit’s rationale in United States v. Cano, which held that border agents are restricted to searching for contraband itself.5
Device detention period
Finally, plaintiffs argued that the policies violate the Fourth Amendment because they do not impose a limit on the duration of electronic device detentions. The First Circuit rejected plaintiffs’ argument and held that the policies “permit detention for only a reasonable period, which is the constitutional test.” The First Circuit found that the policies do not need to prescribe “hard time limits,” and the policies’ requirements that border agents obtain supervisory approvals to extend the device detention period safeguard against unreasonable detention.6
Significantly, the First Circuit’s decision confirming border agents’ expansive ability to search electronic devices at the border has major implications for international business travelers. For most travelers, this decision will only result in greater anxiety or inconvenience. However, international business travelers should consider the potential additional exposure of sensitive or confidential business information if border agents seize and search their cell phones, laptops, or other electronic devices at the border.
Border searches have long been a powerful tool for law enforcement, and the First Circuit’s decision reaffirms the extent of their power. Under this decision, agents do not need a warrant or even reasonable suspicion before conducting a basic search of an electronic device. Moreover, if border agents uncover information during a basic search that gives rise to a reasonable suspicion that there is evidence of contraband or other crimes on the device, border agents then could conduct a more intrusive, advanced search for that evidence, which could include copying the device’s contents.7 While border agents cannot access encrypted or deleted files during a basic search, they will have access to that information in an advanced search.
Companies and individuals should monitor developments, including case law addressing what types of searches require reasonable suspicion, and whether reasonable suspicion that there is evidence of contraband or a crime on the device is sufficient to justify a search. In addition, and as the First Circuit noted, the US Congress – or the Executive Branch – also could “choose to strike a different balance as to border searches of electronic devices” and “grant greater protection than required by the Constitution” in the future.
1 Alasaad v. Wolf, Nos. 20-1077 and 20-1081 (1st Cir. Feb. 9, 2021).
2 DHS’s responsibilities are allocated to multiple different agencies, including CBP and ICE.
3 Plaintiffs also argued that the policies violated the First Amendment; however, the district court did not separately analyze plaintiffs’ claim that the policies violated the First Amendment.
4 CBP’s and ICE’s policies regarding searches of electronic devices are substantively the same.
5 See United States v. Cano, 934 F.3d 1002, 1016 (9th Cir. 2019), petition for cert. filed (Jan. 29, 2021) (No. 20-1043).
6 In ruling on the motions for summary judgment, the district court found a genuine issue of material fact as to whether the border agents’ detention of the electronic devices was reasonable. However, in line with the First Circuit’s decision, the court noted that the reasonableness standard is “the touchstone” for whether detention is constitutional and similarly referenced the US Supreme Court’s reluctance to adopt “hard-and-fast time limits” for reasonableness. Alasaad v. Nielsen, 419 F. Supp. 3d 142 (D. Mass. Nov. 12, 2019).
7 Companies and individuals also should follow developments in Andrews v. New Jersey (No. 20-937), which poses the question of whether an individual can be compelled to disclose the password to an electronic device if it would violate his or her Fifth Amendment privilege against self-incrimination. The Supreme Court has not decided whether to grant the petition for a writ of certiorari filed in that case.