BOSTON — The Knight First Amendment Institute at Columbia University, the Reporters Committee for Freedom of the Press, and a dozen media organizations filed an amicus brief today in support of a constitutional challenge to the government’s warrantless searches and seizures of electronic devices at the border. Urging the court to require a warrant for searches of electronic devices, the groups argue that these searches, if routinely permitted, burden and chill First Amendment-protected activities, including newsgathering.
“Our electronic devices are windows into our personal and professional lives. They contain records of our private thoughts, drafts of our work product, contact information of our friends and colleagues, and digital logs of our daily travels,” said Carrie DeCell, Staff Attorney at the Knight Institute. “Allowing the government to search these devices at the border without heightened justification poses a grave threat to the First Amendment.”
In its 2019 decision, the district court recognized the First Amendment implications of warrantless searches of electronic devices at the border but required only that border agents articulate some reasonable suspicion that a device contains contraband in order to justify a search. In today’s brief, submitted to the U.S. Court of Appeals for the First Circuit in Alasaad v. Wolf, the groups argue that the First Amendment requires that border agents obtain a warrant based upon probable cause before accessing the vast stores of private, expressive content on those devices. The brief warns that warrantless searches raise particular concerns for journalists by exposing their newsgathering efforts and inhibiting their “communications with confidential sources, who are often necessary for accurate reporting.” The brief includes numerous examples of agents harassing journalists at the border, including by searching their devices and detaining them for secondary screenings.
“Journalists should not have their devices searched and seized by the government simply for traveling near or across the border,” said Bruce Brown, Executive Director of the Reporters Committee. “This not only violates the rights of reporters to gather and report the news but harms the flow of information to the public as sources may be afraid to talk with journalists if they know that the government has unfettered access to those conversations.”
The policies at issue were promulgated by U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE) and permit border agents to search travelers’ electronic devices without any suspicion of wrongdoing. They provide no protections for journalists who are selected for device searches. In recent years, the Knight Institute has obtained hundreds of complaints filed by individuals whose devices were searched at the border, as well as thousands of reports documenting device searches conducted by CBP and ICE.
Read the brief here.
Read more about this case here.
Media organizations on today’s brief include First Amendment Coalition, Freedom of the Press Foundation, International Documentary Association, Investigative Reporting Workshop at American University, The Media Institute, National Press Photographers Association, New England First Amendment Coalition, The News Leaders Association, PEN America, Society of Environmental Journalists, Society of Professional Journalists, and Tully Center for Free Speech.
Lawyers on the brief include DeCell and Stephanie C. Krent of the Knight First Amendment Institute, and Brown, Katie Townsend, Gabriel Rottman, Caitlin Vogus, and Linda Moon of the Reporters Committee for Freedom of the Press.
For more information, contact: Lorraine Kenny, Knight First Amendment Institute, lorraine.kenny@knightcolumbia.org; Amelia Nitz, Reporters Committee for Freedom of the Press, media@rcfp.org