In Alasaad v. Wolf, both the U.S. government and plaintiffs – 11 U.S. citizens and one U.S. permanent resident who are represented by the American Civil Liberties Union (ACLU) and Electronic Frontier Foundation (EFF) – are appealing a U.S. District Court of Massachusetts’ ruling requiring a heightened standard of suspicion before government officials can search electronic devices at the border. In a facial challenge to U.S. Customs and Border Protection (CBP) and Immigrations and Customs Enforcement (ICE) policies governing device searches at the border, the plaintiffs assert that the current government policies violate the Fourth Amendment because they do not require a warrant supported by probable cause before searching a device. At the same time, the government contends that the district court erred in requiring that officials must have a reasonable suspicion that a device contains illegal contraband before conducting a “manual search.” The First Circuit’s ruling could further complicate already existing circuit splits on the issue. This post provides background on the case, what the parties are advocating for at the court, how the holding would fit in with the federal appellate case law, and ways the issue could ultimately be resolved.

Generally, border searches are exempted from the Fourth Amendment’s warrant requirement for the government to conduct a search or seizure. But, the Supreme Court’s 2014 decision in Riley v. California, which held that law enforcement must get a warrant before searching electronic devices seized incident to arrest, has raised serious questions about whether border officials must obtain a warrant or otherwise have a heightened level of suspicion prior to searching electronic devices at the border.

In November 2019, a Massachusetts District Court held that CBP and ICE officials must have a reasonable suspicion that a device contains contraband before they can search it. The court reasoned that “[t]he analysis in Riley carries persuasive weight in this context, particularly where the Supreme Court has previously acknowledged that the search incident to arrest exception and the border search exception are ‘similar’ as both are ‘longstanding, historically recognized exception[s] to the Fourth Amendment’s general principle that a warrant be obtained.”

Essentially the district court held that searching electronic devices was more akin to a strip or x-ray search (or a non-routine search), which requires a reasonable suspicion standard, than routine border searches that require no heighted suspicion. Notably, the district court included a carve out for a “cursory search” or “a brief look reserved to determining whether a device is owned by the person carrying it across the border, confirming that it is operational and that it contains data” that can be treated as routine and thus do not require reasonable suspicion. 

Now, both the plaintiffs and the U.S. government are appealing the decision to the First Circuit.

Specifically, the plaintiffs are challenging the constitutionality of CBP and ICE’s polices governing border searches of electronic devices. Both policies distinguish a “forensic search”, where an officer connects external equipment to the device to review, copy, or analyze its contents, from a “manual search,” which is any other type of search. Under current practice, the government already requires reasonable suspicion of “activity in violation of the laws” the agencies enforce or “a national security concern,” to conduct an advanced search. Interestingly, CBP and ICE had just revamped their policies in 2018 to comply with a Ninth Circuit ruling that pre-dated Riley, United States v. Cotterman, which had held that a reasonable suspicion is required for forensic searches but not for manual ones.

The ACLU and EFF argue that the existing requirements are not enough and that law enforcement must obtain a warrant, which thus requires probable cause, in order to comply with the Fourth Amendment when performing any electronic search, manual or forensic. According to the plaintiffs, “[b]order searches of electronic devices are untethered from the underlying rationales for the border-search exception: customs and immigration enforcement—that is, preventing the entry of inadmissible goods and persons.”

The government, on the other hand, argues that the district court erred and that the CBP and ICE directives already comply with any reasonable suspicion requirement that may exist. Namely, the government takes issue with two parts of the district courts holding: first, that manual searches require reasonable suspicion; and, second, that the reasonable suspicion must be that the electronic devices contain digital contraband itself “rather than reasonable suspicion that the device contain evidence about past or future crimes, including crimes relating to contraband crossing the border.”

While the First Circuit could decide the case on standing, if the court reaches the merits, it would be at least the fourth appeals court to decide the issue. While no court has yet to require a warrant, there are already three different holdings as to what the correct standard of suspicion should be (all of which are different than what the First Circuit is reviewing) to search electronic devices at the border:

·      Fourth Circuit: In United States v. Kolsuz, the Fourth Circuit held that a forensic search requires reasonable suspicion of wrongdoing, rejecting the argument that the search seek actual contraband rather than evidence.

·      Ninth Circuit: Since Cotterman, the Ninth Circuit held in United States v. Cano that the government’s reasonable suspicion must be limited to contraband, but that the heightened standard of suspicion was not required for basic searches.

·      Eleventh Circuit: In United States v. Touset, the Eleventh Circuit held that the Fourth Amendment does not require a reasonable suspicion for forensic searches, relying on its earlier precedent that probable cause and a warrant was not required.

·      Plus, the issue is pending at the Fifth Circuit.

Regardless of what the First Circuit decides, given the splits among the circuits, it is possible that the issue will ultimately end up at the Supreme Court. Notably, there a number of issues in this case that could complicate a cert. grant. Aside from the standing issue, the case also includes a First Amendment challenge, questions about how long the government can hold onto devices, and what, if anything, the government must do with the data it obtained from a search that has since been determined to be unconstitutional. Until there is a nationwide standard, CBP is left trying to enforce different standards across the country.

Alternatively, Congress could step in and resolve the issue. There are two existing bills that would go further than any circuit court has held so far. Senators Patrick Leahy and Steve Daines have introduced S. 2694, which would require a warrant for forensic searches and, for a manual search the bill would require a reasonable suspicion that the individual was transporting goods or persons in violation of the law or is not entitled to enter the country and that the device contains information relevant to the suspected violation. Senators Ron Wyden and Rand Paul along with Rep. Ted Liu have introduced S.1606/H.R. 2925, the Protecting Data at the Border Act, which goes even further by requiring a warrant based on probable cause for all searches and prohibits officials from delaying or denying entry if a person declines to provide passwords, PINS, and social media information. While neither bill is likely to move anytime soon (if at all), according to Fourth Amendment scholar Orin Kerr, a legislative approach could allow Congress to conduct additional fact finding and craft a standard that may be capable of uniform application to changing technology as "The Constitution is a blunt instrument in this area,” according to Kerr, and “[i]t is hard for the justices to come up with a clear rule that changes over time in appropriate ways."