Warrantless searches of devices at the border violate travelers’ First Amendment rights, Reporters Committee and Knight Institute argue

On Friday, the Reporters Committee for Freedom of the Press and the Knight First Amendment Institute at Columbia University urged a federal judge to deny a request from the U.S. Department of Homeland Security, U.S. Customs and Border Protection, and U.S. Immigration and Customs Enforcement to dismiss a lawsuit challenging the constitutionality of the government’s warrantless search and seizure of electronic devices at the border.

In a friend-of-the-court brief submitted to a federal district court in Massachusetts in Alasaad, et al. v. Nielsen, et al., the Reporters Committee and Knight Institute argue that because electronic devices store enormous amounts of private information about a person’s thoughts, communications, associations, and movements, searching them at the border without a warrant violates travelers’ First Amendment rights. The searches raise particular concerns for journalists, whose electronic devices also contain sensitive information about their newsgathering activities that, if revealed to the government, could chill their relationships with sources and ability to report freely.

“Journalists should not be subject to having their devices searched and seized by the government simply for traveling across the border,” said Bruce Brown, executive director of the Reporters Committee for Freedom of the Press. “Border searches are only increasing, and sources may be less likely to talk with journalists that travel across the border if they know that the government has unfettered access to those conversations. This not only violates journalists’ rights, but also harms the flow of information to the public.”

“Cellphones and laptops record the questions we pose in search engines, the articles we read online, the conversations we hold over text message, and the pages we ‘like’ on social media,” said Carrie DeCell, staff attorney at the Knight Institute. “Never before has the government had a single point of access to such a comprehensive collection of our expressive information. The First Amendment precludes the government from examining this kind of information without judicial oversight and good cause.”

The brief offers examples of the direct burdens on travelers’ First Amendment freedoms of speech and association, citing hundreds of travelers’ complaints obtained by the Knight Institute through Freedom of Information Act litigation. The complaints describe border agents using their broad search authority to scrutinize travelers’ digitally recorded thoughts, conversations, and political and religious associations.

“For three hours I was questioned, my notebooks and camera was [sic] taken (to make copies I assume) as was my laptop,” writes a traveler, a U.S. citizen and freelance journalist for The New York Times, in a complaint obtained by the Knight Institute. “I was asked about details of whom I met and interviewed, asked for contacts, telephone numbers, emails and I was physically searched . . . I would like this matter to be solved as soon as possible so I can continue my work as a journalist without being treated as a suspect.”

The brief also argues that because electronic devices are essential to gathering and reporting the news, journalists cannot leave them behind while traveling. The risk that journalists will be forced to turn over sensitive newsgathering information at the border may chill reporter-source relationships and impede newsgathering.

According to the brief, “Because electronic devices are necessary to newsgathering, searches of these devices can force disclosure to the government of First Amendment-protected activity. These searches are often highly invasive, to a degree that would make reasonable journalists question whether they are really free to conduct their work. The contents of electronic devices can reveal the stories a journalist is developing, with whom she is communicating, and her specific travel plans. Disclosure of such information can expose sensitive newsgathering methods and deter potential sources from speaking to members of the media.”

Journalists may be more likely to face suspicionless searches than the average traveler, according to the brief, because they report on stories of interest to the U.S. government, which may use searches to retaliate against or deter reporting it objects to. The brief notes that journalists’ travel patterns for work – like making trips frequently, on short notice, from high-risk countries, or on one-way tickets – often draw additional scrutiny.

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

The full brief is available here.