D.Mass.: Border searches of electronic devices are non-routine, and they require reasonable suspicion

Border searches of electronic devices are non-routine, and they require reasonable suspicion. Alasaad v. NielsenAlasaad v. Nielsen, 2019 U.S. Dist. LEXIS 195556 (D. Mass. Nov. 12, 2019):

6. The Broadly Defined Basic Search and Advanced Searches of Electronic Devices are Both Non-Routine Searches

Under the CBP and ICE policies, a basic search and an advanced search differ only in the equipment used to perform the search and certain types of data that may be accessed with that equipment, but otherwise both implicate the same privacy concerns. Basic searches, defined only as any search of an electronic device that is not an advanced search, can access content from space physically resident on a device using the devices’ native operating system. D. 99-1 at ¶ 67. That is, even a basic search alone may reveal a wealth of personal information. Electronic devices carried by travelers, including smartphones and laptops, can contain a very large volume of information, including “sensitive information.” D. 99-1 at ¶¶ 63, 65-66. Such devices can contain, for some examples, prescription information, information about employment, travel history and browsing history. D. 99-1 at ¶ 64. Such information can be accessed during not just the forensic searches under the CBP and ICE policies, but also under a basic search. D. 99-1 at ¶¶ 67-71. Using a device’s native operating system, a basic search can access content from the allocated space physically present on the device, it can extend to any allocated file or information on the devices and, for devices that contain metadata, it can reveal “the date/time associated with the content, usage history, sender and receiver information or location data.” D. 99-1 at ¶¶ 67-69. Even in a basic search, agents can peruse and search the contents of the device, using the native search functions on the device, including, if available, a keyword search. D. 99-1 at ¶ 70. An agent conducting a basic search may use the device’s own internal search tools to search for particular words or images. D. 99-1 at ¶ 71. Accordingly, even a basic search allows for both a general perusal and a particularized search of a traveler’s personal data, images, files and even sensitive information.

This Court does not dispute that a cursory search of an electronic device—e.g., 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, D. 99 at 12—would fall within the border search exception and not require a heightened showing of cause. See, e.g., Cotterman, 709 F.3d at 960-61 (concluding that “a quick look and unintrusive search” of files on a laptop was a routine search, but a forensic search, “essentially a computer strip search” was nonroutine search requiring reasonable suspicion); Kim, 103 F. Supp. 3d at 57 (concluding that however the distinctions between a routine and forensic search are made by higher courts, the search at issue there was “qualitatively and quantitatively different from a routine border examination”). However, the range of searches that the Plaintiffs were subject to by CBP and ICE and the breadth of searches that continue to be permitted even as basic searches under the agencies’ current policies, are not such routine searches given the breadth of intrusion into personal information.

The range of searches that Plaintiffs were subject to here illustrates this breadth. Although most were conducted before the current CBP and ICE policies were adopted on January 4, 2018 (CBP), D. 99-1 at ¶ 6, and May 11, 2018 (ICE), id. at ¶ 17, the record indicates that only a few of the searches of Plaintiffs’ cellphones or laptops may have involved connection to external devices and would have been characterized as advanced searches under the current policies, while the others would have been considered basic searches (i.e., any search that is not an advanced search). These searches provided access to the photographs, contacts and data of both a personally and professionally sensitive nature. For one example, during one search of Dupin, a journalist, agents asked him about his phone’s contents including photos, emails and contacts. D. 99-1 at ¶ 130; D. 91-4 at ¶ 8. CBP agents searched the phone of Shibly, a filmmaker and graduate student, D. 99-1 at ¶ 143, on two occasions, one for approximately thirty-seven minutes, D. 99-1 at ¶ 144; D. 91-8, and officers made notes of the contents. D. 94 at 128. Agents searched the cell phone of Bikkannavar, an optical engineer at NASA’s Jet Propulsion Laboratory, D. 99-1 at ¶ 126, using what the CBP told him were “algorithms” to search his phone. D. 99-1 at ¶ 127; D. 91-3 at ¶ 12. Having had his phone searched by agents on several prior occasions, D. 99-1 at ¶ 134; D. 91-6, Kushkush, a freelance journalist, D. 99-1 at ¶ 133, had his phone taken by agents at the border and searched for an hour, D. 91-6 at ¶¶ 14-17, and then was questioned about his work as a journalist. His phone contained journalistic work product, work-related photos and lists of contacts. D. 91-6 at ¶ 8. These searches provided access to expressive content and personal contacts. For other examples, CBP agents searched the phone and laptop of Merchant, a writer, graduate student and founder and editor of a media website, D. 99-1 at ¶ 136. According to the uncontradicted attestation of Merchant, CBP officers asked her about one of her blog posts while searching her phone and laptop. D. 91-7 at ¶ 11. Her laptop and phone were taken out of her sight for one and a half hours and when returned her phone was open to the Facebook friends page, which it had not been when she gave officers her phone. Id. at ¶ 13. The phone of Nadia Alasaad, a nursing student, D. 99-1 at ¶ 120, was searched despite her objections that it contained photographs of her and her daughters without the headscarf that they are required to wear in public in accordance with her religious beliefs. D. 91 at ¶ 10; D. 91-1 at ¶ 10. Both her phone and the phone of her husband, Ghassan Alasaad, a limousine driver, D. 99-1 at ¶ 120, were seized and not returned to them until fifteen days later. D. 91 at ¶ 18. Upon return, media files in one application, including videos of her daughter’s graduation, indicated that they no longer existed on the phone and were not accessible. Id. at ¶ 19. Zorri, a university professor and former United States Air Force captain, D. 99-1 at ¶ 148, had her electronic devices, including her cell phone, searched for forty-five minutes, id. at ¶ 149.

Since the CBP and/or ICE adopted their search policies in 2018, the electronic devices of some Plaintiffs have also been searched in what were described as basic searches. For one example, on April 5, 2018, Merchant’s phones were searched out of her sight for approximately forty-five minutes, D. 91-7 at ¶¶ 14-21, again on July 7, 2018, D. 91-7 at ¶¶ 22-24; D. 99-1 at ¶ 141; D. 91-7, and again on September 9, 2018. D. 91-7 at ¶¶ 26-32. On this last occasion, Merchant observed a CBP officer viewing emails and text messages between herself and her lawyer. Id. at ¶ 31; D. 99-1 at ¶ 142.

An advanced search can generally reveal anything that would be discovered during a basic search. D. 99-1 at ¶ 72. In addition to data revealed during a basic search, an advanced search also may be able to uncover deleted or encrypted data and copy all of the information physically present on the device depending on the equipment, procedures and techniques used. D. 99-1 at ¶¶ 73-74. Even if a device is not connected to the internet, if information from the internet is cached on the device, agents can see and search the cached information. D. 99-1 at ¶ 75. That is, to the extent that the range of searches permissible as basic searches implicate privacy rights, so too as to the broader range of advanced searches.

On this record, and as Plaintiffs contend, D. 90-1 at 28; D. 107 at 11-12, the Court is unable to discern a meaningful difference between the two classes of searches in terms of the privacy interests implicated. The concerns laid out in Riley of unfettered access to thousands of pictures, location data and browsing history (which, applying the definition under the CBP and ICE policies would have qualified as a “basic search,” Riley, 573 U.S. at 379-80), apply with equal force to basic and advanced searches, particularly as a device’s native operating systems become more sophisticated and more closely mirror the capabilities of an advanced search. In light of this record, case law, and in conjunction with the lack of meaningful difference between basic and advanced searches, the Court concludes that agents and officials must have reasonable suspicion to conduct any search of entrants’ electronic devices under the “basic” searches and “advanced” searches as now defined by the CBP and ICE policies. This requirement reflects both the important privacy interests involved in searching electronic devices and the Defendant’s governmental interests at the border.

7. Reasonable Suspicion, not Probable Cause, Applies to Both Such Searches

. . .

Infosecurity: US Border Officers Humbled by Fourth Amendment Ruling by Phil Muncaster. Oh?

This entry was posted in Border search, Reasonable suspicion. Bookmark the permalink.

Comments are closed.