The First Circuit acknowledged that “he First Amendment provides protections-independent of the Fourth Amendment - against the compelled disclosure of expressive information.” But its First Amendment analysis dismissed the weighty expressive interests at issue in electronic device searches. An amicus brief on behalf of First Amendment and privacy scholars argued that, because electronic devices contain expressive material by and private information about their owners, device searches “substantially burden . core First Amendment freedoms.”Īnother amicus brief highlighted the burden that searches place on reporters, arguing that “unfettered government access to devices at the border threatens freedom of the press.” The district court declined to grant relief on this ground, stating that “a different standard for First Amendment issues from the Fourth Amendment issues is not necessarily required.” Plaintiffs and amici challenged this holding on appeal. Plaintiffs also argued that the ICE and CBP policies separately violated the First Amendment. The First Circuit, however, upheld the policies in their entirety, holding that “neither a warrant nor probable cause is required for a border search of electronic devices” and that basic searches “need not be supported by reasonable suspicion.” The court reasoned that the privacy concerns triggered by device searches “however significant or novel, are nevertheless tempered by” the government’s heightened interests at the border. This was a less stringent requirement than what the plaintiffs sought: a warrant supported by probable cause. The district court invalidated the policies in part, ruling on Fourth Amendment grounds that border agents must have reasonable suspicion that a device contains digital contraband in order to search it. Plaintiffs’ devices contained a variety of sensitive and personal information, including attorney-client communications, private photos of a Muslim woman without her headscarf, and journalistic work product. The plaintiffs challenged policies promulgated by ICE and CBP that authorize border agents to conduct “basic searches” of electronic devices - any search not involving the connection of external electronic equipment to the device - without probable cause, or even reasonable suspicion. The American Civil Liberties Union (ACLU) and Electronic Frontier Foundation (EFF) filed suit on behalf of eleven plaintiffs whose electronic devices had been searched by Customs and Border Protection (CBP) or Immigration and Customs Enforcement (ICE), either at the physical border or upon arrival from an international flight. The First Circuit ruled this month that warrantless searches of electronic devices at the border do not violate the First or Fourth Amendments.
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