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11.21.19

Massachusetts District Court halts “suspicionless” searches of electronic devices at U.S. border

BY , James Ingram

Special thanks to James Ingram for his contributions to this blog post.

Last week, the U.S. District Court in Massachusetts put an end to "suspicionless" searches of international travelers' smartphones and laptops at the U.S. border. With its decision in Alasaad v. Duke, case no. 1:17-cv-11730., the court held that border officials must have at least a reasonable suspicion that an international traveler is carrying some sort of contraband on a smartphone or laptop before searching such devices.

The case was brought by eleven plaintiffs, each of whom alleged that their phones were taken and searched without cause at U.S. ports of entry. The searches had revealed private information about the plaintiffs, including social media postings, photos, and in one instance, attorney-client communications.

The government pushed back against the plaintiffs' claim that the searches violated their constitutional privacy rights, arguing that it had authority to conduct such searches under the "border search exception" to the Fourth Amendment. The court disagreed, however, stating that although the border search exception recognizes the government's compelling interest in border security, it does not allow unfettered discretion in conducting searches at the border, especially with respect to smartphones and laptops.

Leaning on Supreme Court precedent set forth in Riley v. California (2014), the court noted that searching electronic devices fundamentally differs from searching other items, due to the former's capacity to store vast amounts of personal information. As such, requiring border officials to have a particularized suspicion prior to searching electronic devices is a necessary measure to protect privacy rights, despite the government's heightened interest in the area of border security.

Although the court stopped short of requiring border officials to obtain a warrant supported by probable cause prior to searching smartphones and laptops, its decision is being hailed as a major victory by privacy rights advocates. The ruling will serve as an important check on the rising number of electronic device searches conducted at the border each year.

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Jenny L. Holmes

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