A ruling by the U.S. Court of Appeals for the First Circuit in Alasaad v. Mayorkas was wrong to reject First and Fourth Amendment challenges to warrantless — and sometimes suspicionless — device searches at the border, contended Knight First Amendment Institute Staff Attorney Stephanie Krent.
“Searches of these devices can reveal deeply personal information,” Krent pointed out in a Twitter thread following the Feb. 9 decision in the case, which is being litigated by the ACLU and the Electronic Frontier Foundation. “Our electronic devices contain records of our thoughts, pictures of our intimate moments, contact information for our friends and colleagues, and digital logs of our daily travels.”
An amicus brief, filed by the Knight Institute and the Reporter’s Committee for the Freedom of the Press, highlighted the stories of travelers who were forced to provide passwords for social media, messaging, and email accounts, as well as tales of travelers whose text messages were read, whose videos were watched, and whose address books were downloaded by agents.
Krent noted that the Knight Institute had learned of these stories — and more — through its ongoing Freedom of Information Act litigation against U.S. Customs and Border Protection, the U.S. Department of Homeland Security, and the U.S. Immigration and Customs Enforcement. The Institute has obtained thousands of records of electronic device searches, she added.
In its opinion, the First Circuit acknowledged that the First Amendment provides protection — independent of the Fourth Amendment — against government searches of electronic devices, explained Krent. But, she added, the court ultimately brushed these concerns aside, concluding that warrantless searches of devices at the border are “plainly legitimate,” without actually reckoning with the First Amendment interests at stake.
“The panel was wrong to do so,” argued Krent. “The Supreme Court has long recognized the heightened concerns that attach to searches of expressive materials, and has emphasized the need for increased safeguards in light of technological advancements.”
The Knight Institute recently called on the Biden administration to immediately withdraw the directives authorizing federal agents to conduct warrantless searches of electronic devices at the border, and to issue new rules requiring individualized suspicion and judicial authorization.
A. Adam Glenn is a writer/editor at the Knight Institute.