BOSTON (CN) — The First Circuit struggled Tuesday with a policy that lets border agents look through the phones or laptops of travelers returning from abroad.
ACLU senior staff attorney Esha Bhandari argued this morning that agents should have, at least, to have a reasonable suspicion of wrongdoing so that “travelers would know that they couldn’t be searched on a whim,” and “agents couldn’t just look through notifications of medical appointments and photos that reveal intimate things.”
But Justice Department attorney Joshua Waldman warned that such a requirement would have “sweeping effects” and would cripple the government’s ability to fight crime and investigate “billions of dollars of cargo coming in every day.”
Searches of electronic devices at the border are rapidly increasing. There were 30,524 searches in fiscal 2017 when this case was filed, according to Customs and Border Patrol figures, up from 8,503 only two years earlier.
Still, that’s only 0.007% of the roughly 400 million people who arrive at U.S. border each year, the government pointed out.
CBP policy says border agents can open and scroll through a phone or laptop without having any reason to think that the traveler has committed an offense. They don’t need to provide any reason to confiscate a device, and they can keep them for up to five days. If they want to hook a device up to an external machine to extract data, however, agents need a reasonable suspicion of wrongdoing.
The ACLU and the Electronic Frontier Foundation brought this suit on behalf of a group of returning Americans — a military veteran, a NASA engineer and a business owner among them — who had experienced border searches. All are Muslims or people of color and are U.S. citizens or lawful permanent residents.
Akram Shibly, an independent filmmaker in upstate New York, claimed that when he returned from a social outing near Toronto, border officials choked him and held his legs while forcibly taking his phone from his pocket and then kept it for over an hour.
The lawsuit claims the CBP’s policy violates the First and Fourth Amendments.
In November 2019, U.S. District Judge Denise Casper ruled that reasonable suspicion should be required for all searches, even those that don’t involve an external machine. The ruling also limited searches to those for “digital contraband” (such as child pornography) as opposed to evidence of non-electronic crimes that happened to be on the device.
At oral arguments Tuesday in Boston, the appellate panel appeared somewhat more sympathetic to the reasonable suspicion requirement than the digital contraband requirement. But while the ACLU wanted a sweeping ruling, the judges seemed to be looking for ways to limit their holding.
When Bhandari complained that the CBP policy contained exceptions for national security cases, U.S. Circuit Judge Bruce Selya demanded to know if any of the plaintiffs had been searched for national security reasons.
“All the plaintiffs remain at risk” of such a search, she replied.
“They remain at risk of a thousand things that are not at issue in this case,” retorted Selya, a Reagan appointee. “We need a real case or controversy, not an imaginary one.”
U.S. Circuit Judge Sandra Lynch said, “I have been struggling with the distinction between the Fourth Amendment analysis and the First Amendment analysis … Is there any distinction?”
Bhandari said the First Amendment was implicated because travelers might be reluctant to say what they think if they knew that border agents could read their emails before deciding whether to detain them. She pointed to a 1977 Supreme Court case that suggested it could chill speech if customs officials were allowed to intercept and read all international mail.
But Waldman said that if free speech could prevent a search, “it would just create a huge hole in the Fourth Amendment at the border.”
Lynch, a Clinton appointee, suggested that journalists might have a First Amendment case if they were targeted for a border search because they had written anti-government articles.
But Waldman said there was no evidence that any of the plaintiffs in this case had been targeted because of their speech. “There’s no reason to answer hypothetical questions,” he said.
Bhandari defended the digital contraband limitation, saying it was necessary to prevent the government from conducting searches to gather information on third parties. A criminal defense lawyer, for instance, might have a laptop searched to gather information about his or her clients.
But Selya once again complained. “The record doesn’t fairly raise the question of a journalist or defense attorney or any other example you can spin out,” he said. “You’re asking us to give you an advisory opinion.”
“We raised a facial challenge,” Bhandari countered.
Bhandari said a number of Supreme Court cases had required border searches to be limited to relevant matters such as contraband. But Lynch was skeptical, noting that Congress had greatly expanded over time the kinds of things that border agents can look for.
“Congress authorized all sorts of things,” she said, “such as what used to be called white slavery but is now called transport of people for illicit purposes. But you seem to think that Congress’ power to authorize these searches is limited by a historical understanding of old Supreme Court cases that were concerned with contraband and I don’t understand that.”
Bhandari replied, “we don’t dispute that Congress has given the CBP authority to enforce laws,” but she cited a 2014 Supreme Court case saying that exceptions to the warrant requirement, such as for border searches and searches incident to arrest, must be narrowly tethered to their intended purpose.
Lynch wondered how practical it was to limit searches based on what agents were looking for. “How are the plaintiffs going to know what the border officer has in mind when he conducts a search?” she asked.
And Waldman noted that border agents have to investigate huge amounts of cargo. “Bills of lading are evidence,” he said, and agents need to be able to search them even if they have nothing to do with child pornography.
Selya then offered a possible compromise: If the court required reasonable suspicion of criminal activity for all searches, that might make it unnecessary to limit searches to digital contraband, he suggested.
A reasonable suspicion requirement “seems to me a protection against the general rummaging that you fear,” he told Bhandari.
“Reasonable suspicion would go a long way,” she agreed.
U.S. District Court Judge Joseph Laplante, a George W. Bush appointee, participated in the panel but didn’t ask any questions.