419 F.Supp.3d 142
D. Mass.2019Background
- Plaintiffs: ten U.S. citizens and one lawful permanent resident who each had electronic devices (phones, laptops, cameras) searched at U.S. ports of entry; several were searched multiple times, some devices were seized, and some data was retained or copied.
- CBP and ICE policies (CBP updated Jan. 2018) distinguish “basic” searches (no cause required) from “advanced” searches (CBP and ICE require reasonable suspicion or a national-security exception for advanced searches); but “basic” is defined only as any search that is not an advanced search.
- Border databases (TECS, ATS, ICM) can record and retain information about prior device searches; such records can be accessed by officers and may inform future screenings.
- Plaintiffs allege Fourth Amendment (unreasonable searches/seizures) and First Amendment (compelled disclosure/expression/association) violations and seek declaratory and injunctive relief plus expungement of retained data.
- On cross-motions for summary judgment the court found the factual record developed, concluded that many device searches under the current policy are non-routine, and addressed standing, constitutional standards for searches and seizures, and remedies.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to seek injunctive/declaratory relief | Plaintiffs face a substantial likelihood of future searches (past searches, database retention, ongoing travel). | Risk of future injury is speculative and the overall rate of searches is very low. | Plaintiffs have standing: prior searches, database retention, and travel plans make future searches sufficiently likely. |
| Fourth Amendment—are device searches at the border routine or non-routine? | Broad device searches (both basic and advanced as defined) are highly intrusive and thus non-routine. | Border-search exception covers both basic and advanced searches without heightened suspicion. | Both basic and advanced searches (as currently defined) are non-routine in many instances; require reasonable suspicion. |
| Fourth Amendment—what level of suspicion is required? | Reasonable suspicion that the device contains contraband is constitutionally required (not no-suspicion or warrant/probable-cause standard). | No additional showing beyond border-search exception; if any, courts have not required warrants for border device searches. | Court requires reasonable suspicion (specific and articulable facts) that the device contains contraband for non-cursory searches; probable cause/warrant not required. |
| First Amendment—do device searches burden expressive/associational rights and require different protection? | Searches expose expressive, privileged, and associational materials; First Amendment protection supports heightened scrutiny/warrant. | Searches are content-neutral border security measures; government interest is paramount. | Court denied summary judgment to both sides on First Amendment claim; held that reasonable-suspicion framework addresses many First Amendment concerns but did not grant separate First Amendment relief beyond Fourth Amendment ruling. |
| Seizure/detention of devices (post-border searches) | Prolonged seizures without probable cause are unreasonable; detention must be reasonable in scope/duration. | Seizures for investigative searches at the border are justified by border authority; no rigid time limit. | Seizures for non-cursory searches must be supported by reasonable suspicion and be of reasonable duration; court reserved case-specific reasonableness review. |
| Expungement of retained data remedy | Plaintiffs seek expungement to prevent future searches and cure ongoing harm. | Expungement is extraordinary and unnecessary where other remedies and deterrents (declaratory relief, training, suppression in criminal cases) exist. | Court denied request for expungement as unnecessary given declaratory ruling and the reasonable-suspicion requirement; expungement is discretionary and extraordinary. |
Key Cases Cited
- United States v. Ramsey, 431 U.S. 606 (Sup. Ct.) (describes border-search exception grounded in sovereign interest to control entry)
- United States v. Flores-Montano, 541 U.S. 149 (Sup. Ct.) (government interests at border are at their zenith; reduced expectation of privacy)
- United States v. Montoya de Hernandez, 473 U.S. 531 (Sup. Ct.) (distinguishes routine and non-routine border searches; applies reasonable suspicion for non-routine)
- Riley v. California, 573 U.S. 373 (Sup. Ct.) (cell phones’ unique privacy interests require careful balancing; instructive for digital-search analysis)
- Carpenter v. United States, 138 S. Ct. 2206 (Sup. Ct.) (digital technology raises new Fourth Amendment concerns; courts should not uncritically extend precedent)
- United States v. Cotterman, 709 F.3d 952 (9th Cir.) (forensic computer searches are highly intrusive; reasonable suspicion required)
- United States v. Molina-Gomez, 781 F.3d 13 (1st Cir.) (applied reasonable suspicion to non-routine searches of electronic devices)
- United States v. Kolsuz, 890 F.3d 133 (4th Cir.) (forensic phone searches at border treated as non-routine and require at least reasonable suspicion)
- United States v. Cano, 934 F.3d 1002 (9th Cir.) (analyzes search-for-contraband distinction and reasonable-suspicion requirement)
- United States v. Place, 462 U.S. 696 (Sup. Ct.) (Terry-stop reasonableness framework for seizures; scope/duration must be reasonable)