The ruling says customs officials can rummage through highly personal information even absent any reason to think their owner did something wrong.

A traveler with Global Entry or TSA PreCheck goes through security at John F. Kennedy International Airport in New York on Sept. 26, 2020. (Courthouse News photo/Barbara Leonard)

BOSTON (CN) — Border agents can turn on a U.S. citizen’s laptop, phone or other digital device, scroll through the data and then confiscate it for weeks even if they don’t have any reason to suspect that the owner is guilty of a crime, the First Circuit ruled Wednesday. 

“Given the volume of travelers passing through our nation’s borders, warrantless electronic device searches are essential to … adequately protect the border,” the Boston-based court said in a 29-page decision

Requiring suspicion of wrongdoing “would hamstring the agencies’ efforts to prevent border-related crime and protect this country from national security threats.” 

Searches of electronic devices at the border are rapidly increasing. There were 30,524 searches in fiscal 2017 when this case was filed, according to Customs and Border Patrol figures, up from 8,503 only two years earlier.  

Still, that’s only a tiny fraction of the roughly 400 million people who arrive at U.S. border each year.  

The ACLU and the Electronic Frontier Foundation brought this suit on behalf of a group of returning Americans — a military veteran, a NASA engineer and a business owner, among them — who had experienced border searches. All are Muslims or people of color as well as U.S. citizens or lawful permanent residents.  

Akram Shibly, an independent filmmaker in upstate New York, claimed that when he returned from a social outing near Toronto, border officials choked him and held his legs while forcibly taking his phone from his pocket and then kept it for over an hour.  

The ACLU won in the District Court but the First Circuit rejected that ruling after a three-judge panel held oral arguments in January. 

Current government policy is that agents can rummage through phones and laptops for no reason, although they can’t access the internet while they search and they must have reasonable suspicion to hook the device up to an external machine to extract data or to view deleted or encrypted files. They can also keep a device for a “reasonable” period, although they must get a supervisor’s approval to keep it after the person crosses the border and additional approval to keep it for more than 15 days. 

The First Circuit said none of this violated the Fourth Amendment. 

“Electronic devices may contain a trove of sensitive personal information,” U.S. Circuit Judge Sandra Lynch wrote for the court, but “the government’s interest in preventing crime at international borders is at its zenith.” 

The Clinton appointee went on to say that border agents can search for evidence of a crime — such as texts and emails — and not just for “digital contraband” such as child pornography. This puts the court at odds with the Ninth Circuit, which ruled in 2019 that agents who don’t have reasonable suspicion can only search for digital material that is itself illegal, not for material that might simply prove that a person did something illegal. 

The government asked the U.S. Supreme Court late last month to review the Ninth Circuit opinion. The fact that the First Circuit has now issued conflicting precedent makes it more likely that the justices will take up the issue. 

The First Circuit differentiated this case from a 2014 Supreme Court ruling that said police can’t search suspects’ cellphones after arresting them, arguing that searches at the border are fundamentally different from searches incident to arrest. 

Left undecided by the court, however, was whether border agents can force people to reveal their passwords. 

Last August the New Jersey Supreme Court ruled that the government could force people to reveal their phone passcodes because this didn’t violate the privilege against self-incrimination. The defendant in that case has also filed a petition with the Supreme Court. 

In addition to the Fourth Amendment claim, the ACLU had argued that the border searches violated the First Amendment because people’s free speech could be chilled if they knew that government officials could read their private emails, and because the government could target journalists and criminal defense attorneys for intrusive and inappropriate searches. 

Since none of the plaintiffs in the case had been subject to any such inappropriate targeting, however, the First Circuit declined to rule on this issue. It said it might consider a different outcome in a future case “should there be abuses.” 

A report by NBC News in 2019 suggested that such abuses were in fact occurring and that the government had created a secret database of journalists, lawyers, immigration advocates and even social media influencers, resulting in scrutiny at the border. 

Esha Bhandari, the ACLU attorney who argued the case, said today: “Suspicionless electronic device searches can give border officers unfettered access to vast amounts of private information about our lives. We are disappointed with the ruling and evaluating all options to ensure we don’t lose our privacy rights when we travel.” 

The First Circuit decision was joined by U.S. Circuit Judge Bruce Selya, a Reagan appointee, and U.S. District Judge Joseph Laplante, a George W. Bush appointee sitting by designation from New Hampshire.



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