Criminal Justice

Merchant v. Mayorkas

In Merchant v. Mayorkas, the Supreme Court is being asked to consider whether the Fourth Amendment permits law enforcement officers—without a warrant, probable cause, or even reasonable suspicion of illegal activity—to search the contents of laptops, smartphones, and other electronic devices carried by American citizens and others as they travel to and from foreign countries.

Case Summary

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. In this case, a number of U.S. citizens 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 in the district court 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 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 doing so might uncover evidence of crimes.

On appeal in the U.S. Court of Appeals for the First Circuit, CAC once again filed a friend of the court brief in support of the plaintiffs. In February 2021, the First Circuit ruled against the plaintiffs and reversed the district court. Without adequately acknowledging the privacy intrusions caused by unrestricted government searches of personal information stored on electronic devices, the First Circuit held that border agents may review the material stored on international travelers’ devices without a warrant, probable cause, or even reasonable suspicion of a crime. The court further held that border agents need not limit their examinations of these devices to looking for contraband, but instead may search for evidence of any possible violation of the many laws that the customs and immigration agencies help enforce—all without a warrant or reasonable suspicion.

The plaintiffs then filed a petition asking the Supreme Court to hear the case, and CAC filed a brief urging the Court to do so and to reverse the judgment of the First Circuit. Our brief once again emphasizes the primacy of the right to privacy in one’s personal papers under the Fourth Amendment.  And as before, our brief explains why the border search doctrine cannot be expanded to include warrantless searches of the digital papers carried on electronic devices. Because digital files contain vast quantities of personal information, inspecting the contents of those files is unlike a standard border search of physical objects carried by a traveler. Under the Fourth Amendment, border agents may search the contents of an electronic device without a warrant only if they have reason to believe that the device contains digital contraband.

Case Timeline

  • February 2, 2018

    CAC files amicus brief

    D. Mass. Amicus Brief
  • April 23, 2018

    District court hears oral argument

  • May 9, 2018

    District court issues ruling, citing CAC amicus brief

    See opinion here

  • November 12, 2019

    The district court ruled on the motion for summary judgment

  • August 7, 2020

    CAC files amicus curiae brief

    1st Cir. Amicus Br.
  • January 5, 2021

    The First Circuit hears oral argument

  • February 9, 2021

    The First Circuit issues its decision

  • May 28, 2021

    CAC files amicus curiae brief in support of the petition for a writ of certiorari

    Sup. Ct. Amicus Br.