Fourth Amendment

electronic devices

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A federal appeals court has upheld government policies that allow basic searches of electronic devices at the border without reasonable suspicion and advanced searches only with reasonable suspicion.

The 1st U.S. Circuit Court of Appeals at Boston said the policies do not violate the First or Fourth Amendments.

The appeals court ruled Feb. 9 in a civil suit filed by the American Civil Liberties Union and the Electronic Frontier Foundation on behalf of 11 travelers whose electronic devices were searched without a warrant.

Basic searches are allowed without suspicion of illegality by U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement. Both agencies also allow advanced searches with reasonable suspicion.

The CBP defines an advanced search as a search in which external equipment, through a wired or wireless connection, is used to access an electronic device to review, copy or analyze its content.

The plaintiffs had argued that all searches of electronic devices at the border require a warrant or, in the alternative, reasonable suspicion that the device contains contraband.

The court said every circuit court that addressed the probable cause question is in agreement that it isn’t needed.

“Given the volume of travelers passing through our nation’s borders, warrantless electronic device searches are essential to the border search exception’s purpose of ensuring that the executive branch can adequately protect the border,” the 1st Circuit said.

The appeals court said it was also joining the 9th Circuit at San Francisco and the 11th Circuit at Atlanta in holding that basic border searches can be performed without reasonable suspicion.

The appeals court also said border agents don’t have to restrict their searches to digital contraband contained on the digital device. Agents can also search for evidence of border-related crimes or contraband, the court said.

The appeals court said the 9th Circuit had differed, taking the “narrow view” that the border search exception is restricted to searches for contraband.

Judge Sandra Lynch, an appointee of former President Bill Clinton, wrote the opinion. Joining her were Judge Bruce Selya, appointed by former President Ronald Reagan, and Judge Joseph Laplante, a federal trial-level judge sitting by designation who was appointed by former President George W. Bush.

Law360, Courthouse News Service, Bloomberg Law and Reuters covered the opinion.

See also:

ABAJournal.com: “Judge rules border agents need reasonable suspicion to search electronic devices”