First Circuit Upholds Border Searches of Electronic Devices Without Probable Cause

"2 "[T]he expectation of privacy is less at the border than it is in the interior," and officers at the border generally may, without any articulable suspicion, search through travelers' bags and other personal items.3 The U.S. Supreme Court has historically taken a broad view of the border exception, holding that it extends to any "routine" searches, including opening a sealed letter,4 and disassembling a car's gas tank.5 It has, however, drawn the line at "non-routine" searches, such as certain particularly invasive body searches, which it has held require reasonable suspicion.6 More recently, there has been extensive litigation over the standard of suspicion required to search a traveler's electronic devices, such as cell phones and laptops. Under the CBP guidelines, a basic search can be performed without any basis for suspicion whatsoever, while an advanced search requires reasonable suspicion of criminal activity or a national security concern.10 For either search, CBP officers may seek travelers' assistance in opening any password-protected device.11 If a traveler does not provide such assistance, or if CBP is otherwise unable to complete an inspection because of password or encryption protection, the officer may temporarily detain or permanently seize the device.12 U.S. Immigration and Customs Enforcement ("ICE") has adopted analogous rules to govern its searches of electronic devices at the border "to ensure compliance with customs, immigration, and other laws enforced by ICE. The plaintiffs filed suit in the U.S. District Court for the District of Massachusetts, asserting that the CBP and ICE guidelines violated the Fourth Amendment's protection against unreasonable searches and seizures and their First Amendment right to freedom of expression.14 Plaintiffs alleged that the material on their devices seized by border officers included personal pictures of them and family members, confidential information related to their work in journalism, and privileged communications with their attorneys.15 On November 12, 2019, the district court held that both "basic" and "advanced" searches of electronic devices at the border violate the Fourth Amendment unless there is reasonable suspicion that the devices contain contraband.16 The court first analyzed whether these border searches were "routine" or "non-routine," focusing on a traveler's privacy interest in the contents of his or her electronic devices and the intrusiveness of these searches. "19 A "cursor