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Reasonable suspicion needed to search US citizen phones and computers at the border

November 21, 2019

Last year, I blogged about how the US Customs and Border Patrol (CBP) was conducting suspicion-free, warrantless searches of travelers' phones and computers. 

 

The American Civil Liberties Union (ACLU), Electronic Frontier Foundation (EFF), and ACLU of Massachusetts challenged the CBP practice on behalf of 11 plaintiffs.  On November 12th, the U.S. District Court for the District of Massachusetts in the case Alasaad v. Nielsen ruled against that practice as a violation of the Fourth Amendment's protection against unreasonable searches and seizures (see Order hosted on Mega.nz). 

 

The Court started with the border search exception to the Fourth Amendment.  The Court found the exception does not grant the government unfettered power.  Rather, individuals have a reduced expectation of privacy and the government's interest in preventing the entry of unwanted persons and effects is at its height (Order at p.16)

 

The Court examined whether the search was within the exception.  As the searches of the plaintiffs were of U.S. citizens and a lawful permanent resident, the searches did not appear to further the government's interest in preventing the entry of unwanted persons (Order at p.20-21).

 

The Court found individuals even at a border have a substantial privacy interest in their electronic device that are "capable of storing warehouses full of information" (Order at p24).

 

The Court then found that after balancing the interests that warrantless searches of citizen and lawful permanent resident electronic devices at a border should require reasonable suspicion (Order at p33-38).

 

Image from stocksnap.io.

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