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A Victory for Digital Privacy Rights at the U.S. Border

Last week, in a historic decision on travelers’ rights to privacy at the U.S. border, U.S. District Court Judge Denise Casper in Boston ruled that suspicionless searches at U.S. ports of entry (airports and border crossings) of travelers’ electronic devices violate the Fourth Amendment of the U.S. Constitution.  Weighing the U.S. government’s paramount interest in controlling the border against an individual’s right to the privacy of their digital data, the judge stated that in order to search a device, border agents need to be able to articulate specific facts that would allow them to draw an inference that a traveler’s device contains digital contraband.

U.S. Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) policies articulate very different standards for “basic” searches of devices, and for “forensic” (also known as “advanced”) searches.  While acknowledging that the more intrusive forensic examinations of devices (which they can hold for up to 14 days) would require reasonable suspicion that the device holds evidence of wrongdoing, the agencies had granted themselves broad discretion to undertake a manual inspection of a traveler’s device such as a cell phone, laptop or tablet and look through its contents.  Indeed, based only on a hunch or feeling, CBP officers increasingly demand that travelers turn over their devices if they have doubts about whether the traveler’s true intent in entering the U.S. is at odds with his or her specific type of visa.  On these occasions, they hold the individual in secondary inspection, often for many hours, while they scroll through the person’s emails, text messages and social media accounts.

This decision is important for a number of reasons:

First, the judge ruled that the CBP and ICE policies are unlawful in that the government must have reasonable suspicion not just for conducting forensic examinations of devices but also for basic (often random) device searches.  This is the first court decision to find that even manual searches require reasonable suspicion.  The practical impact is significant because the vast majority of searches of devices by CBP are manual searches.  There are only a tiny percentage of cases where the government has retained someone’s device for a complete forensic examination.

Second, although the plaintiffs in this case were all either U.S. citizens or lawful permanent residents, the ruling is applicable to all travelers to the U.S.

Third, limiting the scope of the searches to digital contraband (such as child pornography) as opposed to impermissible or unlawful travel motives etc., should greatly reduce the random, unjustified device searches by CBP at the border.  While the ruling clarifies that CBP may not manually inspect the devices of U.S. citizens and lawful permanent residents without reasonable suspicion that the device contains evidence of contraband, the fact that the ruling applies to all travelers also means that CBP may no longer search a traveler’s device as a fishing expedition to try to find evidence that his or her purpose in coming to the U.S. is impermissible.

Whether the government will abide by the ruling remains to be seen.  This decision was thoughtful and contained a thorough examination of the evolution of the case law on this subject, noting that the legal tide is turning toward greater privacy protections for international travelers.

There will always be a tension between the government’s interests and travelers’ privacy interests at the U.S. border.  The government may well appeal this ruling and argue that it should be able to retain broad discretion to manually search devices without having to articulate reasonable suspicion of contraband.

Stay tuned for further updates on the evolution of travelers’ privacy rights at the U.S. border.

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Author

Susan J. Cohen

Member / Founding Chair, Immigration Practice

Susan J. Cohen is Chair of Mintz's Immigration Practice and a nationally recognized Immigration lawyer. She helps corporate clients manage immigration challenges. Susan is an American Immigration Lawyers Association (AILA) member and she's contributed to state and federal immigration regulations.