Defamation / Reputation, Privacy, Data Protection and Retention
Marina v. Romania
Closed Expands Expression
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The United States District Court for the District of Massachusetts ruled that non-cursory searches and seizures of international travellers’ electronic devices at U.S. ports of entry, without “reasonable suspicion” of criminal conduct, violate the Fourth Amendment. The case was brought by the Electronic Frontier Foundation and the American Civil Liberties Union on behalf of 11 travelers whose smartphones and laptops were searched at the U.S. border without cause or a warrant. The Court held that the Fourth Amendment’s protection against unreasonable searches and seizures require federal authorities to have at least a “reasonable suspicion” that the electronic devices contain contraband. U.S. District Judge Denise Casper reasoned that the substantial personal privacy interests implicated by the search of electronic devices falls outside the border search exception to the Fourth Amendment’s warrant requirement. However, the Court rejected the Plaintiffs’ First Amendment claim and their argument in favour of a higher standard of “probable cause”, rather than “reasonable suspicion.”
On September 13, 2017, the Electronic Frontier Foundation and the American Civil Liberties Union filed a lawsuit against U.S. Customs and Border Protection (“CBP”), U.S. Immigration and Customs Enforcement (“ICE”) and Kirstjen Nielsen, the Secretary of the U.S. Department of Homeland Security (“DHS”). The case was brought on behalf of 11 travellers whose smartphones and other electronic devices were searched at least once without a warrant by CBP and ICE. 10 of the travellers are U.S. citizens, while one is a lawful permanent resident. Most of these searches took place after the Plaintiffs’ return to the U.S. on international flights, while some occurred at border crossings.
The Plaintiffs in this case are Ghassan Alasaad, Nadia Alasaad, Suhaib Allababidi, Sidd Bikkannavar, Jérémie Dupin, Aaron Gach, Ismail Abdel-Rasoul a/k/a Isma’il Kushkush, Diane Maye, Zainab Merchant, Mohammed Akram Shibly and Matthew Wright. One such Plaintiff, Merchant, is the founder and editor of a media website. Her phone was searched multiple times by federal border agents despite her concern that officers would see photos of her without her headscarf and, on one occasion, her refusal to consent to a phone search as it contained attorney-client correspondence. Merchant further alleges that she witnessed a CBP officer view communications between her and her lawyer. Dupin’s phone also contained correspondence relating to his work as a journalist, while Bikkannavar’s phone was officially owned by NASA’s Jet Propulsion Laboratory and contained information from his work there. Information obtained by CBP or ICE agents during searches of the Plaintiffs’ electronic devices was retained by the federal agencies.
In January 2018, CBP updated its written policy on border searches of electronic devices to distinguish between “basic” and “advanced” searches. The new policy requires “reasonable suspicion or a national security concern” for an “advanced” search and no such requirement for a “basic” search. [p. 4] An “advanced” search is defined as “any search in which an officer connects external equipment, through a wired or wireless connection, to an electronic device, not merely to gain access to the device, but to review, copy and/or analyze its content,” while a “basic” search is any search that is not “advanced.” [p. 4] Both CBP and ICE use the same definitions of basic and advanced searches and ICE policy also requires “reasonable suspicion” to conduct an “advanced” search.
The Plaintiffs alleged that the Defendants’ conduct pursuant to their written policies violates the Fourth Amendment and First Amendment of the U.S. Constitution. They sought declaratory and injunctive relief related to the Defendants’ border policies and practices as well as the expungement of all information obtained via searches of their electronic devices.
On May 9, 2018, the Court denied the Defendants’ motion to dismiss, finding that the Plaintiffs have plausible Fourth Amendment and First Amendment claims. The Plaintiffs then moved for summary judgment and the Defendants cross moved for summary judgment.
District Judge Denise Jefferson Casper delivered the opinion of the Court.
The main issue before the Court was whether the search and seizure of travelers’ electronic devices pursuant to official ICE and CBP border policies is an unconstitutional invasion of Fourth Amendment and First Amendment freedoms.
The Court firstly considered the Defendants’ arguments challenging the Plaintiffs’ standing in their motion for summary judgment. To establish standing, the Plaintiffs must demonstrate that they “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” (Spokeo, Inc. v. Robins, 578 U.S., 136 S. Ct. 1540, 1547 (2016)) [p. 8] The Defendants primarily argued that the risk of future injury to the Plaintiffs is too “speculative” to support their standing with regard to border searches.
The Court held that the Plaintiffs made a sufficient showing of standing for the injunctive and declaratory relief sought. Judge Casper determined that there was an injury in fact, relating to the alleged conduct of the Defendants as border agencies, that would likely be redressed by a favourable decision from the Court. The Plaintiffs also met the additional burden of showing that there was a substantial risk of future harm from any subsequent international travel. This was made more apparent from the discovery, which revealed that federal agents may access information from travelers’ past searches stored in agency databases to inform whether or not to conduct future searches. As the Plaintiffs had been subject to previous searches and planned for future international travel, the Court determined that there was “sufficient likelihood that the challenged harm (i.e., search of electronic devices without cause) may occur for Plaintiffs in the future.” [p. 9] Judge Casper rejected the Defendants’ argument that the overall percentage of searches of electronic devices (0.007%) is too low to amount to a substantial risk of future harm. The Court found that the total number of searches of electronic services was, in reality, higher than 0.007%. Furthermore, even if the total was not a significant percentage, the likelihood of the Plaintiffs’ electronic devices being searched without cause would not be an “exceedingly low probability.” (Kerin v. Titeflex Corp., 770 F.3s 978, 983 (1st Cir. 2014)) [p. 11] Not only had several defendants already been searched multiple times but the reliance by border agencies on their databases means that a traveler whose electronic devices were already searched has a greater chance of future searches.
The Court further held that the Plaintiffs have standing to seek expungement of information retained by the Defendants from their electronic devices. Citing Tabbaa v. Chertoff, 509 F.3d 89, 96 n.2 (2d Cir. 2007), the Court recognised that retention of data illegally obtained by law enforcement may equate to a continuing harm sufficient to establish standing to seek expungement. [p. 12] By alleging that their data was retained due to unconstitutional border searches that could be addressed by expungement, the Plaintiffs successfully demonstrated standing to seek expungement.
Count I: Plaintiffs’ Fourth Amendment Claim
The Fourth Amendment protects the right of the people against unreasonable searches and seizures. Citing United States v. Wurie, 728 F.3d 1, 3 (1st Cir. 2013), the Court noted that a “warrantless search is per se unreasonable under the Fourth Amendment, unless one of ‘a few specifically established and well-delineated exceptions’ applies.” [p. 15] Such exceptions arise in circumstances whereby the “needs of law enforcement” are “so compelling that the warrantless search is objectively unreasonable under the Fourth Amendment.” (Mincey v. Arizona, 437 U.S. 385, 393-94 (1978)) [p. 15]
One such exception to the warrant requirement is the border search exception, “grounded in the recognized right of the sovereign to control, subject to substantive limitations imposed by the Constitution, who and what may enter the country.” (United States v. Ramsey, 431 U.S. 606, 620 (1977)) [p. 15] However, this exception is not without limit and must still be reasonable, balanced against the intrusion on an individual’s right to privacy and necessary for the promotion of legitimate government interests. (United States v. Montoya de Hernandez, 473 U.S. 531, 539 (1985)) [p. 16]
The Plaintiffs argued that CBP and ICE policies authorizing searches of electronic devices without a warrant at the U.S. border violate the Fourth Amendment’s protection against unreasonable searches and seizures. The Defendants, however, argued that the electronic searches fall within the purview of the border search exception to the Fourth Amendment’s warrant requirement. The Defendants cited the interests served by the border search exception as helping “to ensure national security; prevent the entry of criminals, inadmissible aliens, and contraband.” [p. 17] As such, the Defendants allege that no further showing is constitutionally required.
The Court recognized that governmental interests in maintaining “territorial integrity” at the border are paramount. However, Judge Casper argued that the border such exception is not boundless. Courts must determine whether the search is in line with the “purpose of the exception” and, if it is, whether the search “intrudes upon a competing privacy interest to such an extent that a warrant or other heightened level of suspicion should still be required.” (Riley v. California, 573 U.S. 386-401) [p. 19]
Accordingly, the Court held that the border search exception applies only to routine, not non-routine, searches. Citing Almedia-Sanchez v. United States, 413 U.S. 266, 272 (1973), the Court noted that the border exception applies to “routine inspections and searches of individuals or conveyances seeking to cross our borders.” [p. 21] “Non-routine searches, by contrast, require reasonable suspicion.” (United States v. Molina-Gomez, 781 F.3d at 19 (1st Cir. 2015)) [p. 21] The distinction between routine and non-routine searches is dependent on the invasiveness of the search, rather than the frequency. Such a determination would depend on a number of factors, including the “scale” and “sheer quantity” of personal information contained on digital devices, as well as the “uniquely sensitive nature of that information.” (United States v. Kolsuz, 890 F.3d 133, 144-45 (4th Cir. 2018)) [p. 23] The Court accepted the Defendants’ submission that no court has thus far required a warrant for a search of electronic devices at the border. The Court additionally recognised that there is a “growing precedent” that weighs governmental interests strongly against privacy interests at the border concerning forensic searches of digital devices.
The Court proceeded by balancing the Plaintiffs’ privacy interests in the contents of their electronic devices against the border search exception to the Fourth Amendment. Judge Casper firstly set out that while the “government’s interest in preventing the entry of unwanted persons and effects is at its zenith at the international border,” an individual’s “expectation of privacy is less at the border than it is in the interior.” (United States v. Flores-Montano, 541 U.S. 149, 152 (2004)) [p. 24] However, citing United States v. Cotterman, 709 F.3d 952, 964 (9th Cir. 2013), the Court recognised the distinction between electronic and non-electronic searches. Courts have recognized the “substantial privacy interests” implicated by the searches of electronic devices now “capable of storing warehouses of information.” [p. 24] Judge Casper extended this recognition of privacy interests to matters at the border: “This is true at the border as well.” [p. 24] ICE and CBP policies apply to a wide range of electronic devices, including “[a]ny item that may contain information, such as computers, disks, drives, tapes, mobile phones and other communication devices, cameras, music players, and any other electronic or digital devices.” [p. 25] Such devices may contain a vast array of personal data. In the present case, information on Plaintiffs’ devices when they were searched included attorney-client communications, photos of some Plaintiffs without their required religious attire, information relating to one Plaintiff’s work as a journalist, and social media content. Judge Casper relied on Riley v. California, 573 U.S. 373 (2014), in which the Supreme Court found that the warrantless search and seizure of digital devices during an arrest is unconstitutional, to show the vast privacy interests against which the promotion of governmental interests must be weighed. In this case, the Supreme Court recognised that “a cell phone search would typically expose to the government far more than the most exhaustive search of a house: [a] phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form—unless the phone is.” (Riley v. California, 573 U.S. 396-397 (2014)) [p. 27] Applying Riley, the Court recognised the difficulty of following precedent concerning searches to new technology that presents such a greater risk to personal privacy.
The Court subsequently determined that the broadly defined “basic” and “advanced” searches of electronic devices are both non-routine searches. Under the CBP and ICE policies, basic and advanced search policies are distinguished by the equipment used to perform the search. However, the Court found that both “implicate the same privacy concerns” as even basic searches “may reveal a wealth of personal information.” [p 29] While the Court did not oppose “cursory” searches of electronic devices without a warrant, the breadth and range of the “basic” searches that the Plaintiffs were subject to under the CBP and ICE policies were not “routine” given the significant intrusion into the Plaintiffs’ privacy. These searches included access to photographs, contacts and data of both a personally and professionally sensitive nature. As such, the Court was “unable to discern a meaningful difference between the two classes of searches in terms of the privacy interests implicated.” [p. 33] Citing Riley v. California, Judge Casper warned of the risk that ““unfettered access to thousands of pictures location data and browsing history” would arise even under a “basic” search of electronic devices. [p. 33]
Having concluded that no meaningful distinction exists between “basic” and “advanced” searches, the Court held that “reasonable suspicion”, rather than “probable cause”, should apply to both searches. Reasonable suspicion is a “common-sense conclusion about human behavior upon which practical people, including government officials, are entitled to rely.” (United States v. Montoya de Hernandez, 473 U.S. at 541-42) [p. 33] While the Court acknowledged the Defendants’ argument that it might be “impracticable” to require a search warrant for all searches of electronic devices, Judge Casper noted that “impracticability is not the touchstone for the legal analysis here, rather the touchstone is reasonableness.” (Riley v. California, 573 U.S. at 381) As governmental interests are greater at the border than elsewhere, the Court held that “reasonable suspicion”, rather than the higher standard sought by the Plaintiffs and applied in Riley v. California of “probable cause”, is warranted. Accordingly, the Court allowed in part the Plaintiffs’ motion for summary judgment under the Fourth Amendment.
Count II: Plaintiffs’ First Amendment Claim
The Court subsequently considered the Plaintiffs’ argument that the First Amendment requires federal border agents to seek a warrant before searching travelers’ electronic devices. The Plaintiffs’ submission relies on the highly sensitive information contained on electronic devices concerning “personal, privileged, confidential, and anonymous communications and associations.” [p. 38]
The First Amendment provides that “Congress shall make no law… abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble.” (U.S. Const. amend. I) The Court began their analysis by determining whether the border searches conducted pursuant to the CBP and ICE policies burden the First Amendment. While the policies are content neutral, compelled disclosure of a First Amendment protected activity can itself be a burden. (Buckley v. Valeo, 424 U.S. 1, 64 (1976)) [p. 39] If such a burden arises, it is not unconstitutional as long as it “serves compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms.” (Roberts v. United States Jaycees, 468 U.S. 609, 623 (1984)) [p. 40] Applying this principle to the facts of the case, Judge Casper reasoned that the state interest is the “interdiction of persons and goods at the border,” the Plaintiffs were not targeted for their speech and there were no clear alternative means that would be less restrictive. [p 40] This is particularly the case where the Court adopts a standard requiring that any searches of digital devices be conducted with “reasonable suspicion” that the device contains contraband that is not protected speech.
Consequently, the Court denied both the Plaintiffs’ and Defendants’ motion for summary judgment as to First Amendment rights.
Count III: Plaintiffs’ Seizure of Electronic Devices
Finally, the Court considered the Plaintiffs’ argument that the government’s seizure of their electronic devices with the intent to search the devices after their departure from the border violated the Fourth Amendment due to a “lack of probable cause… for the seizure at the time it was made.” [p. 41]
The Court initially noted that, with regard to the prolonged detention of an electronic device, “a seizure reasonable at its inception must remain reasonable in scope and duration to satisfy the Fourth Amendment.” (United States v. Kolsuz, 890 F.3d at 141) [p. 41] As the confiscation of a device may initially be reasonable and then later become unreasonable, Count I was considered separately from Count III. While this claim was a question of “reasonableness”, the Court was reluctant to adopt “hard-and-fast time limits” for the reasonableness of detention in a border context. [p. 42] However, Judge Casper held that, where “border agents seize an electronic device for non-cursory search supported by reasonable suspicion, such detention must be for a reasonable period that allows for an investigatory search for contraband.” [p. 42]
Accordingly, the Court allowed in part the Plaintiffs’ motion for summary judgment for Count III “to the extent that it seeks the ruling above” and denied the Defendants’ motion for summary judgment. [p. 42]
The Court held that expungement of all information gathered from, or copies made of, the contents of the Plaintiffs’ electronic devices, including social media information and device passwords, was not warranted. Although the Court recognised that this relief was sought, in part, to avoid future border searches under the agencies policies, the Court found that “expungement is an extraordinary measure committed to the discretion of the Court.” (Citing Appellant v. Sealed Appellee, 130 F.3d 695, 701 (5th Cir. 1997)) [p. 43] As such, even where evidence has been obtained from a search in an unconstitutional manner, expungement does not necessarily follow. Rather, expungement is a remedy at the Courts discretion and only if necessary, particularly where the Court is granting other forms of relief that may have a deterrent effect. In this case, the Court has already ruled that reasonable suspicion is required for basic and advanced searches. In light of this relief, the Court denied the Plaintiffs’ request for expungement of information taken from their digital devices.
The Plaintiffs additionally sought a declaration that the “Defendants’ policies violate the First and Fourth Amendment facially and have violated Plaintiffs’ First and Fourth Amendment rights by authorizing and conducting searches of electronic devices absent a warrant supported by probable cause.” [p. 46] The Court held that the CBP and ICE policies for “basic” and “advanced” searches as “presently defined” violated the Fourth Amendment to the extent that the policies did not require “reasonable suspicion” for “basic” and “advanced” searches of electronic devices. Accordingly, the non-cursory searches and seizures of the Plaintiffs’ electronic devices, without the required reasonable suspicion, was a violation of their Fourth Amendment freedoms.
Finally, the Plaintiffs sought injunctive relief to prevent the Defendants from conducting searches of travelers’ electronic devices without a warrant “supported by probable cause” that the devices contained contraband or evidence of a violation of immigration or customs laws. The Plaintiffs also sought an injunction to prevent the Defendants from confiscating travelers’ electronic devices, with the intent to search them after they leave the border, without probable cause and without promptly seeking a search warrant. The Court was unwilling to impose a nationwide injunctive relief without further briefing from the parties. As such, the Court denied the Plaintiffs’ request for “injunctive relief without prejudice.”
For the reasons stated above, the Court allowed the Plaintiffs’ motion for summary judgment in part and denied it in part, and denied the Defendants’ motion for summary judgment.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands expression by restricting the ability of U.S. federal border agents from searching international travelers’ electronic devices without reasonable suspicion of criminal activity. While the Fourth Amendment prohibits certain searches and seizures without a warrant, U.S. courts have upheld a “border search exception” to allow examination of persons and property when entering the country without a warrant or individualized suspicion. By opposing the border search exception in this case, the decision recognises the increased risk to privacy implicated by the search of electronic devices that often contain vast amounts of personal information. The Court further dismissed the notion applied in previous cases that “reasonable suspicion” should only apply for more “advanced”, rather than “basic” searches.” This ruling acknowledges that a large volume of personal information can be accessed from electronic devices with even a basic search. While Judge Casper did not recognise a separate First Amendment claim or grant the Plaintiffs either expungement or injunctive relief, the decision expands expression by requiring federal agents to demonstrate reasonable suspicion before they can search a traveler’s electronic device.
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