By: Katie Haas

In November 2019, the United States District Court for the District of Massachusetts ruled in Alasaad v. McAleenan, that warrantless searches of smartphones and laptops without individualized suspicion (reason to believe the device contained contraband giving rise to a search) at United States airports and ports of entry are violations of the Fourth Amendment’s prohibition of unreasonable searches and seizure.  Filed by the ACLU and the Electronic Frontier Foundation, 11 plaintiffs alleged the Department of Homeland Security, The U.S. Customs and Border Protection (CBP), and the U.S. Immigration and Customs Enforcement (ICE) violated their constitutional rights by requiring that they turn over their phones and computers for extensive searches of their data before reentry into the United States.

CBP and ICE retained and kept seven of the plaintiff’s devices. There is reason to believe CBP and ICE have retained the data found on the devices as well. Some of the plaintiff’s belongings were kept for multiple days—one device was kept for 56 days and one device still had not been returned when the case was filed in September 2017. None of the searches conducted led to any arrests or discovery of contraband on the devices.

Prior to the ruling in Alasaad, both CBP and ICE had identical policies for searches at ports of entry. Their policies delineated two types of searches: “basic” and “advanced” searches. An advanced search occurred when an officer “connects external equipment through a wired or wireless connection, to an electronic device, not merely to gain access to the device, but to review, copy and/or analyze its contents.” In contrast, a basic search was defined as “any border search that is not an advanced search. “Advanced searches required reasonable suspicion while a basic search did not require any suspicion or cause.

Recognizing that the balancing of the plaintiff’s privacy interests and the defendant’s governmental interest in maintaining security at the border tips heavily in favor of the defendants, the District Court in Alasaad granted summary judgment in favor of the plaintiffs.  The court held that reasonable suspicion that the device contains contraband is required to conduct both “basic” and “advanced” searches of smartphones and computers. Anything more than a cursory search of a phone, such as unlocking it and looking at the data contained inside, calls for a heightened showing of cause.  The district court relied, in part, on Riley v. California, which held that police may not search through the contents of a cell phone without a warrant “except when the government’s interests are so compelling that a search would be reasonable.” However, the District Court rejected plaintiff’s argument that probable cause and a warrant should be required to conduct a cell phone or laptop search at the border, finding the lower standard of individualized suspicion sufficient to protect both privacy interests and national security interests at ports of entry.

Alasaad’s impact is still unclear. The district court’s ruling applies nationwide, however the court did not enjoin CBP’s actions, but merely declared that “basic” and “advanced” searches of devices at the border are violations of the Fourth Amendment. Further, at least one jurisdiction deciding this issue has ruled differently. The Eleventh Circuit held that privacy interests do not prevail over government interests in this context. In line with Alasaad’s outcome, the Fourth Circuit and the Ninth Circuit ruled that privacy and constitutional interests protect individuals from warrantless searches of smartphones and computers at ports of entry

Alasaad will likely be appealed to the First Circuit and, depending on the outcome, the current Circuit split may become even greater, creating a ripe issue for the Supreme Court to weigh in on. Given current precedent, it is unclear how the Supreme Court would rule on the case.  The Supreme Court has granted increased protection for cell phones and cell phone data subject to searches (see Riley discussed above). However, the Court has also accorded great deference to searches at the border given the national security interests implicated. This is shown in United States v. Martinez-Fuente, where the court ruled that vehicle searches at the border do not require individualized suspicion.

As discussed at length in the District Court’s opinion, given the minimal amount of contraband and evidence found on smartphones, and the exceptionally intrusive nature of detaining and searching through data on smartphones and other devices, courts should require reasonable suspicion to conduct invasive searches of smartphones and computers at ports of entry at a minimum. Requiring probable cause and warrant requirements would add increased Fourth Amendment protection and would assist in preventing unnecessary invasions of privacy much like what the plaintiffs in Alasaad experienced.