CONSTITUTIONAL LAW - DEVICE SEARCHES ABSENT REASONABLE SUSPICION ALLOW SECURITY INTERESTS TO OUTWEIGH PRIVACY CONCERNS AND AMPLIFY BIAS AT THE U.S. BORDER - ALASAAD V. MAYORKAS, 988 F.3D 8 (1ST CIR. 2021).

• Author: Colbert, Shannah

The Constitution of the United States sets forth fundamental principles that create a national government, divide its power, and protect individual liberties. (1) Although the Fourth Amendment forbids unreasonable searches and seizures, some searches, such as those conducted at the United States border, are subject to exceptions. (2) In Alasaad v. Mayorkas, (3) the United States Court of Appeals for the First Circuit considered whether searches of electronic devices at the border require a warrant. (4) Elevating security interests above privacy concerns, the First Circuit held that searches of cellphones and electronic devices fall within the border exception to the Fourth Amendment's warrant requirement when such searches are for the purpose of locating contraband or evidence of contraband. (5)

From 2016 through 2019, at various United States ports of entry, federal officers seized and searched the electronic devices of ten lawful citizens and one permanent resident ("Plaintiffs"). (6) While some searches occurred at border crossings, most took place at United States airports as individuals returned from international flights. (7) The searches included smartphones, both locked and unlocked, along with other electronic devices such as laptop computers. (8) United States Customs and Border Protection ("CBP") officers searched the devices of five of the Plaintiffs more than once, and CBP officers searched the devices of two female Plaintiffs despite their religious objections to having the officers view photos of the women without their headscarves. (9) Information gleaned from the devices notably included highly sensitive work-related materials and privileged attorney-client communications. (10)

The Plaintiffs filed suit against the heads of the Department of Homeland Security ("DHS"), CBP, and United States Immigration and Customs Enforcement ("ICE") in their official capacities seeking declarative and injunctive relief, arguing that agency policies concerning electronic devices violated their constitutional rights. (11) Plaintiffs first argued that under the Fourth Amendment, the border search warrant exception does not extend to the searches of electronic devices. (12) As to their First Amendment claim, the Plaintiffs alleged that searches of electronic devices without a warrant or reasonable suspicion may chill free speech and interfere with their freedoms related to association and the press. (13) The United States District Court for the District of Massachusetts granted summary judgement in favor of the Plaintiffs' Fourth Amendment claims, concluding that the CBP and ICE policies violated the Fourth Amendment because basic and advanced searches are non-routine searches that require reasonable suspicion. (14) On appeal, the United States Court of Appeals for the First Circuit held that the border search exception to the warrant requirement "encompassed basic, routine searches of cellphones and electronic devices without reasonable suspicion." (15)

Fourth Amendment jurisprudence recognizes several exceptions to the warrant requirement. (16) To determine whether a search is exempt from the warrant requirement, courts assess the level of intrusion upon an individual's privacy and the government's need to serve a legitimate government interest. (17) Rooted in the government's "inherent authority to protect," the border search exception allows for routine searches at the border without a warrant or probable cause. (18) Prior to Congress' proposal of the Fourth Amendment, Congress implemented the first customs statute, the Act of July 31, 1789, which granted officials the authority to search ships and vessels suspected of concealing goods subject to duty. (19) Because "[a] port of entry is not a traveler's home[,]" individuals had a lessened expectation of privacy, permitting border searches to enforce duty collection and obtain contraband without a warrant or probable cause. (20) As Fourth Amendment jurisprudence evolved, the Supreme Court applied the border search exception's rationale--that the government's national security interest outweighs an individual's expectation of privacy at the border--to modern counterparts, eventually leading lower courts to examine its application to electronic devices. (21)

The scope of routine and non-routine searches, of which the latter requires reasonable suspicion, is dependent on the degree of invasiveness or intrusiveness of the search and is particular to the facts of a case. (22) However, the Supreme Court impliedly limited the distinction between routine and non-routine searches to those of persons and not property. (23) While courts consider the objective intrusiveness of a search, efforts to strike a balance between national security and privacy concerns frequently favor the government's goal of preventing unwanted individuals and items from entering the country. (24)

The digital age quickly complicated the reasonableness of border searches, with millions of individuals traveling each day with electronic devices which contain ranges of sensitive and private information. (25) When examining the constitutionality of a warrantless search of a cellphone incident to a lawful arrest, the Supreme Court acknowledged the unique privacy concerns regarding the search and seizure of information stored in electronic devices. (26) Courts across the circuits have agreed that searches of electronic devices are incomparable to physical items or persons due to the vast amount of accessible information that such devices contain. (27) However, the Supreme Court has declined to "either create or suggest a categorical rule to the effect that the government must always secure a warrant before accessing the contents of such a device." (28) Despite continued technological advancements increasing the government's reach into private data, the Supreme Court has not explicitly addressed the scope of advantaged electronics border searches. (29)

Due to the absence of Supreme Court precedent, the United States Courts of Appeals for the Fourth, Ninth, and Eleventh Circuits are split on the level of suspicion required for border searches of electronic devices. (30) Specifically, the circuits differ on whether the warrant requirement for cellphone searches applies to forensic searches of electronic devices at the border. (31) The Fourth and Ninth Circuits agree that officers must possess some level of individualized suspicion of criminal activity to perform a search absent a warrant or probable cause. (32) In contrast, the Eleventh Circuit held that border searches of electronic devices may be performed by officers without reasonable suspicion. (33)

At the border, CBP and ICE enforce a broad spectrum of laws, and both agencies' policies provide nearly-identical "standard procedures" for searches of electronic devices to ensure compliance with customs, immigration, and other regulations. (34) CBP policy specifically demands that officers do not take race or ethnicity into account with border investigation, screening, and law enforcement. (35) However, a number of suits filed against border patrol agencies alleged discriminatory enforcement against people of color. (36) Documented racial profiling confirms that certain racial and religious groups face an increased likelihood of being searched at border stops. (37) For example, CBP arrest records from bus terminals and railway stations in Rochester, New York, reveal that out of 2,776 arrests over four years, only 0.9% involved individuals with a "fair complexion." (38) Thus, people of color with privacy concerns that are already weakened by security interests are also disproportionately subjected to searches of their electronic devices. (39)

In Alasaad v. Mayorkas, the First Circuit addressed whether the border exception allows agents to perform basic searches of electronic devices without reasonable suspicion. (40) After affirming that border searches do not require a warrant, the court focused on the "novel and significant" privacy concerns surrounding electronic devices. (41) Despite such considerations, the court determined that government interests, which are paramount at the border, outweigh individual privacy concerns. (42) Further, because there is no "intrusive search of a person" when examining an electronic device, the court held basic border searches of electronic devices are routine and do not require reasonable suspicion. (43) The court credited the border agencies' guidance, which only permits a manual search of a traveler's electronic device and prohibits any investigation beyond "data resident on the device," stating that such policies restrict the scope of private information accessible by an agent and counter concerns regarding deleted or encrypted files that may be especially sensitive. (44) In accordance with previous Ninth and Eleventh Circuit rulings, the court concluded that basic border searches of electronic devices may be conducted without reasonable suspicion. (45)

The First Circuit also rejected arguments that the border search exception: (1) only extends to searches aimed at preventing the entry of contraband and inadmissible persons; and (2) only includes searches for illegal contraband itself. (46) The court explained that compared to non-border contexts, the scope of warrantless searches at the border "must be limited ... to that which is justified by the particular purposes served by the exception." (47) Because the government's primary intention is to prevent crime at international borders, the court reasoned that searches for evidence of contraband or crime align with that fundamental objective. (48) With respect to the scope of advanced searches, the court suggested that constitutional limitations do not prevent Congress's authorization of the inclusion of information or items other than contraband. (49) Additionally, the court dismissed the alleged distinction between evidence of contraband and...