Federal judge allows lawsuit challenging constitutionality of warrantless border searches to proceed

Judge’s opinion cites the Reporters Committee and Knight Institute’s amicus brief, which argued the practice raises concerns for journalists and First Amendment freedoms

A federal district judge in Massachusetts rejected a request from the U.S. Department of Homeland Security, U.S. Customs and Border Protection (CBP), and U.S. Immigration and Customs Enforcement to dismiss a lawsuit challenging the constitutionality of warrantless searches of electronic devices at the U.S. border.

The Electronic Frontier Foundation and the American Civil Liberties Union filed the lawsuit in September 2017 on behalf of 11 travelers — including two journalists and an editor of an online publication — whose electronic devices were searched, and in some cases confiscated, at the U.S. border. The government agencies’ internal policies allow border officers to search electronic devices without first obtaining a warrant or having a reason to believe someone has done something wrong.

The Reporters Committee for Freedom of the Press and the Knight First Amendment Institute at Columbia University submitted a friend-of-the-court brief in the case in February, arguing that suspicionless searches of electronic devices at U.S. borders threaten to chill newsgathering, speech, and other activities protected by First Amendment.

The case will move forward while such searches are on the rise: In January, new data from CBP showed the agency conducted electronic device searches on 30,200 international travelers in 2017, up from just over 19,000 in 2016.

In requesting the lawsuit be dismissed, the agencies argued that the 11 travelers lacked standing to bring the case since they could not show they would be searched again, and that even if the case were allowed to proceed, the 11 travelers wouldn’t win because the U.S. Constitution allows border officials to conduct suspicionless searches of electronic devices.

The plaintiffs argued that the case should proceed because electronic device searches at the border violate both the First and Fourth Amendments. Their argument relied on Riley v. California, a 2014 U.S. Supreme Court case that held that warrantless search and seizure of a cellphone during an arrest is unconstitutional. The case also acknowledged that cellphones should be treated differently than other physical possessions when it comes to law enforcement searches because they contain uniquely private and expressive information.

The Reporters Committee and the Knight Institute’s brief highlighted the particular concerns that warrantless searches raise for journalists and argued that suspicionless searches of electronic devices burden core First Amendment freedoms, including freedoms of speech, association, and the press. The brief explained that journalists are particularly vulnerable to such searches because their work can be critical of the government and that warrantless searches can chill reporter-source communications and reveal sensitive newsgathering methods. Because the searches implicate travelers’ First Amendment rights, the brief also argued that courts must scrupulously apply Fourth Amendment protections by requiring border agents to obtain a warrant.

In ruling that the case could proceed, the court referenced two of the arguments made in the Reporters Committee and Knight Institute’s brief. First, the opinion recognized that the First Amendment applies at the border and echoed the brief’s claim that journalists “are particularly vulnerable to targeted surveillance by means of suspicionless device searches.”

The opinion also noted that the facts of the case support that claim: Border agents asked both plaintiffs who were journalists about their reporting activities during the searches of their devices. The opinion also recognized that border agents searched and questioned plaintiffs about other expressive or associational matters — such as artwork and religious affiliation — further bolstering the notion that device searches implicate First Amendment freedoms.

The opinion concluded, “In light of the particular concerns raised by digital devices like cell phones detailed above . . . and the limitless search authorizations in the CBP and ICE policies, Plaintiffs have plausibly alleged that the government’s digital device search policies substantially burden travelers’ First Amendment rights.”

The case will now proceed to the merits stage, where the parties will present their arguments to the district court.

Attorneys from Jenner & Block and Morgan, Lewis & Bockius LLP provided pro bono representation to the Reporters Committee and Knight Institute in conjunction with the brief.