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In an important decision affecting privacy rights, a federal court in Boston this month ruled that the federal government's searches of international travelers' smartphones and laptops at airports and other U.S. ports of entry, undertaken without individualized suspicion of wrongdoing, violate the Fourth Amendment. The lawsuit, Alasaad v. McAleenan¸ was filed by the American Civil Liberties Union and others on behalf of 11 travelers whose smartphones and laptops were searched without reasonable suspicion at U.S. ports of entry. Plaintiffs were either U.S. citizens or lawful permanent resident aliens with an undisputed right to enter the country. U.S. District Judge Denise J. Casper held that the government must have reasonable suspicion that the device contains contraband before searching electronic devices at the border. The court did not require warrants, or the heightened showing of probable cause, for border searches of electronic devices, as of the ACLU requested, and permitted brief "cursory searches" limited to determining whether the device is owned by the person carrying it and is operational without a heightened showing of cause, but held that U.S. Customs and Border Protection did not have unfettered ability to search electronic devices without reasonable suspicion that contraband is present on the device.

The district court's order ends the U.S. Customs and Border Protection's and ICE's asserted authority to search and seize travelers' devices for purposes far afield from the enforcement of immigration and customs laws. Border officers must now demonstrate individualized suspicion that the device contains contraband before they can search a travelers' electronic device.

The ruling relied primarily on the U.S. Supreme Court's 2014 decision in Riley v. California, which established that electronic devices are fundamentally different from physical containers such as suitcases. Judge Casper found that "[w]hat the border search exception recognizes, rather than a limitless ability to conduct searches in connection with international travel, is that individuals have a reduced expectation of privacy at the international border, while the government's 'interest in preventing the entry of unwanted persons and effects is at its zenith' there." Citing Riley, the court added, "even as the governmental interests may be broader, there still must be a showing of 'the degree to which [the search exception] is needed for the promotion of legitimate governmental interests,' before weighing it against the degree of intrusion on an individual's privacy."

There have been disturbing reports of international travelers returning to the United States subjected to patently improper searches. For example, a border officer searched a device and viewed e-mails and text messages between the device's owner and her attorney, a journalist was questioned about the photos, e-mails, and contacts on his phone, and devices have been searched for social media posts expressing views critical of the U.S. government. Information gleaned by CBP and ICE during these searches was retained and included in written reports. According to the ACLU, the number of electronic device searches at U.S. ports of entry has increased markedly. Last year, CBP conducted over 33,000 such searches, nearly four times the number from 2016.

We support the district court's ruling, which strikes a reasonable balance between the governmental need to search electronic devices when reasonable suspicion exists of either contraband or immigration law violations, and the clear Fourth Amendment right to freedom from arbitrary searches of personal and confidential electronic materials. Our borders present unique challenges to law enforcement to protect public safety, and we all understand, or should understand, that border crossings necessarily involve some degree of inconvenience and temporally limited restrictions on our personal freedom. These restrictions never should have included, however, the ability to CBP and ICE to rummage through our most sensitive and personal matters without any reasonable suspicion.