Gov’t Can’t Toss Suit Over Phone Searches At Border

The government can’t shake a suit over U.S. border patrol agents searching travelers’ electronic devices without a warrant after a Massachusetts federal court has ruled that the travelers challenging the policy have plausible claims that their rights to privacy and free speech were curtailed.

In a 52-page order, U.S. District Judge Denise J. Casper rejected the government’s arguments that these constitutional protections do not apply at the U.S. border, finding that the plaintiffs can sue for violation of their First and Fourth Amendment rights after they were forced turn over their electronic devices to U.S. Customs and Border Protection officers for search.

“Although defendants may be correct that the border is different, the Supreme Court and First Circuit have acknowledged that digital searches are different too since they ‘implicate privacy concerns far beyond those implicated’ in a typical container search,” the order says.

Judge Casper leaned heavily on a landmark 2014 U.S. Supreme Court decision that held that cellphones cannot be searched without a warrant, even after an arrest, because digital data does not need to be searched to protect the arresting officer or to preserve it as evidence.

Similarly, Judge Casper rejected the government’s arguments that the plaintiffs lacked standing, ruling instead that the alleged breach of privacy did constitute an injury that could reasonably be repeated on future international trips.

The government had claimed the risk of search was minimal, as only 0.008 percent of travelers, or 30,000 people, were searched at the border this fiscal year. But Judge Casper was unconvinced, writing that 30,000 searches per year “is not a ‘rare occurrence.'” She added that the fact that four of the plaintiffs had been searched multiple times “suggests that the risk of future search is higher for these plaintiffs than the general population.”

According to current policy, U.S. Immigration and Customs Enforcement has the authority to search any electronic device at the border, and to confiscate and copy the device’s data offsite, “with or without individualized suspicion,” and return the device within “a reasonable time.”

The CBP policy, which gave agents similar discretion at the time the plaintiffs’ devices were searched, has since been updated to distinguish between basic and advanced searches, requiring “reasonable suspicion” and supervisor approval for the latter.