Alasaad v. Nielsen
Under regulations adopted by the Department of Homeland Security, border agents are permitted to search through the documents, photographs, emails, and other files stored on international travelers’ electronic devices without any reason to suspect that those travelers are engaged in wrongdoing. Agents may even confiscate the devices and hold them for months without a warrant or probable cause. Ghassan Alasaad and ten other U.S. citizens and permanent residents brought suit in federal district court to challenge these practices, after having their smartphones and laptops searched and seized while reentering the United States following business or personal travel.
CAC filed a friend-of-the-court brief on behalf of the plaintiffs. Our brief urged the court to reject the government’s attempt to justify these highly intrusive searches by relying on an expansion of the “border search doctrine.” That doctrine, a traditional exception to the Fourth Amendment’s warrant requirement, allows suspicionless searches of people and property entering the country in order to locate contraband and enforce customs and immigration laws. As we explained in our brief, however, this exception cannot justify giving government agents free rein to inspect the vast range of files stored on modern electronic devices—which include private and familial writings and correspondence, personal photographs, all manner of records, and other private information. Such files are digital “papers,” which the text of the Fourth Amendment explicitly protects. And as we explained, oppressive searches of personal papers were at the core of the historical struggle that inspired the Framers to adopt the Fourth Amendment’s safeguards. Consistent with those historical origins, personal papers have traditionally received heightened protection under the Fourth Amendment, and the Supreme Court has acknowledged the unique intrusions on privacy that occur when the contents of one’s papers are exposed to the government. For these reasons, searching the information stored on modern electronic devices cannot be equated with searching through physical objects carried in a traveler’s luggage, and unfettered power to browse through a person’s entire digital library cannot be squared with the Fourth Amendment simply because the search occurs at the border.
The district court denied the government’s motion to dismiss, allowing the case to proceed. The court’s opinion relied on CAC’s brief in concluding that electronic device searches are highly intrusive, citing CAC’s argument that “personal papers require greater protection under the Fourth Amendment” and that such papers include “digital files kept on cell phones, laptops, and other electronic devices.”
In November 2019, the district court denied the government’s motion for summary judgment and granted in part the plaintiffs’ motion for summary judgment. The court ruled that examining the contents of an electronic device during a border search requires agents to have reasonable suspicion that the device contains digital contraband, such as child pornography or classified information. The court concluded that the Fourth Amendment prohibits border agents from conducting suspicionless searches of electronic devices merely because those devices might contain evidence of crimes.