A judge for the US District Court for the District of Massachusetts ruled Tuesday that the increasing searches of electronic devices at border crossing points by Customs and Border Protection (CBP) violate the Fourth Amendment guarantee against unreasonable search and seizure because the searches are not based on reasonable suspicion.
District Judge Denise Casper issued the ruling in response to a lawsuit brought by the Electronic Frontier Foundation and the American Civil Liberties Union on behalf of 11 travelers.
While acknowledging that national safety is the major priority, Casper ruled that “[e]ven border searches are not boundless” in their searching liberties. In accordance with precedent, the court determined that “[e]ven as the governmental interests may be broader at the border there still must be a showing of ‘the degree to which [the search exception] is needed for the promotion of legitimate governmental interests.'” Casper paid particular attention to considering the border exception rule to the search warrant requirement, but they ultimately found that the exception provides “rather than a limitless ability to conduct searches in connection with international travel, is that individuals have a reduced expectation of privacy at the international border,” noting also that the government has its greatest interest in preventing unwanted persons from entering.
The complaint was originally brought in 2017 after many of the plaintiffs had their electronic devices searched one or more times, usually while at an airport reentering the country. Some of the searches included going through confidential journalistic work information or violating a traveler’s religion by reviewing photos of her and her daughters despite her protests that they were not wearing their headscarves in the pictures. Furthermore, the complaint stated that many of the devices were confiscated for extended periods of time spanning weeks or months. The complaint also pointed to CBP data showing that their rate of electronic device searches has been growing substantially over the last few years:
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. If the rate of searches continues to grow, CBP may conduct even more searches in the next fiscal year.
Casper denied the request by the plaintiffs to require agents to have probable cause and obtain warrants before searching devices, however.