ALERT MEMORANDUM First Circuit Upholds Border Searches of Electronic Devices Without Probable Cause If you have any questions concerning this memorandum, please reach out to your regular firm contact or the February 25, 2021 following authors. In a decision with potentially far-reaching implications, Alasaad v. Mayorkas, Nos. 20-1077, 20-1081, 2021 WL David E. Brodsky 521570 (1st Cir. Feb. 9, 2021), the First Circuit recently + 1 212 225 2910 rejected First and Fourth Amendment challenges to the [email protected] Lev L. Dassin U.S. government agency policies governing border + 1 212 225 2790 searches of electronic devices. These policies permit so- [email protected] Victor L. Hou called “basic” manual searches of electronic devices + 1 212 225 2609 without any articulable suspicion, requiring reasonable [email protected] Rahul Mukhi suspicion only when officers perform “advanced” + 1 212 225 2912 searches that use external equipment to review, copy, or [email protected] analyze a device. The First Circuit held that even these Giovanni P. Prezioso + 1 202 974 1650 “advanced” searches require neither probable cause nor a [email protected] warrant, and it split with the Ninth Circuit in holding that Samuel Levander + 1 212 225 2951 searches need not be limited to searches for contraband, [email protected] but may also be used to search for evidence of contraband or evidence of other illegal activity. This decision implicates several takeaways for company executives entering and leaving the United States – citizens and non-citizens alike – particularly if they or their employers are under active investigation. In-house counsel in particular should consider the implications of the decision given obligations of lawyers to protect the confidentiality of attorney-client privileged information. clearygottlieb.com © Cleary Gottlieb Steen & Hamilton LLP, 2019. All rights reserved. This memorandum was prepared as a service to clients and other friends of Cleary Gottlieb to report on recent developments that may be of interest to them. The information in it is therefore general, and should not be considered or relied on as legal advice. Throughout this memorandum, “Cleary Gottlieb” and the “firm” refer to Cleary Gottlieb Steen & Hamilton LLP and its affiliated entities in certain jurisdictions, and the term “offices” includes offices of those affiliated entities. ALERT MEMORANDUM Background may reveal “far more than the most exhaustive search of a house.”6 Traditionally, courts have held that searches at the border “are reasonable simply by virtue of the fact that CBP and ICE Guidelines for Searching they occur at the border,” where the “Government’s Devices at the U.S. Border interest in preventing the entry of unwanted persons and effects is at its zenith.”1 “[T]he expectation of In 2018, U.S. Customs & Border Protection (“CBP”) announced new search guidelines for electronic privacy is less at the border than it is in the interior,” 7 and officers at the border generally may, without any devices at the border. These guidelines differentiated articulable suspicion, search through travelers’ bags between “basic” searches, which involve a manual and other personal items.2 The Supreme Court has examination of a device’s contents, and “advanced” searches, which rely on external equipment to review, historically taken a broad view of the border 8 exception, holding that it extends to any “routine” copy, or analyze a device’s contents. The guidelines searches, including opening a sealed letter,3 and are equally applicable to U.S. citizens and non- disassembling a car’s gas tank.4 It has, however, citizens. drawn the line at “non-routine” searches, such as Under the CBP guidelines, a basic search can be certain particularly invasive body searches, which it performed without any basis for suspicion whatsoever, has held require reasonable suspicion.5 while an advanced search requires reasonable suspicion of criminal activity or a national security More recently, there has been extensive litigation over 9 the standard of suspicion required to search a traveler’s concern. electronic devices, such as cell phones and laptops. For either search, CBP officers may seek travelers’ While these searches are less physically intrusive than assistance in opening any password-protected device. 10 those previously identified by the Supreme Court as If a traveler does not provide such assistance, or if “non-routine,” there is a growing consensus that, with CBP is otherwise unable to complete an inspection developments in technology, searches of electronic because of password or encryption protection, the devices implicate fundamental privacy interests and officer may temporarily detain or permanently seize the device.11 1 United States v. Flores-Montano, 541 U.S. 149, 152, 154 6 Riley v. California, 573 U.S. 373, 396 (2014); see United (2004) (quoting United States v. Ramsey, 431 U.S. 606, 616 States v. Cotterman, 709 F.3d 952, 966 (9th Cir. 2013) (1977)); see Boyd v. United States, 116 U.S. 616, 623 (describing a forensic search of a laptop’s hard drive as (1886) (“[I]t is clear that the members of that body did not “essentially a computer strip search”). regard searches and seizures of this kind as ‘unreasonable,’ 7 U.S. Customs & Border Protection, CBP Directive No. and they are not embraced within the prohibition of the 3340-049A (Jan. 4, 2018), [Fourth Amendment].”). https://www.dhs.gov/sites/default/files/publications/CBP%2 2 Ramsey, 431 U.S. at 616; see United States v. Irving, 452 0Directive%203340-049A_Border-Search-of-Electronic- F.3d 110, 123-24 (2d Cir. 2006) (“[W]e have long ruled that Media.pdf; see Rahul Mukhi & Britta Redwood, “New searches of a person’s luggage or personal belongings are Rules for Searching Electronic Devices at the U.S. Border,” routine searches.”). Cleary Cybersecurity & Privacy Watch, 3 Ramsey, 431 U.S. 606. https://www.clearycyberwatch.com/2018/02/new-rules- 4 Flores-Montano, 541 U.S. 149. searching-electronic-devices-u-s-border/. 5 United States v. Montoya de Hernandez, 473 U.S. 531, 541 8 Id. (1985) (“We hold that the detention of a traveler at the 9 Id. border, beyond the scope of a routine customs search and 10 Id. inspection, is justified at its inception if customs agents . 11 Id. As the First Circuit noted, there is a pending petition reasonably suspect that the traveler is smuggling contraband for a writ of certiorari before the Supreme Court as to in her alimentary canal.”). whether the Fifth Amendment protects an individual from being compelled to disclose passwords to electronic devices 2 ALERT MEMORANDUM U.S. Immigration and Customs Enforcement (“ICE”) held that it was “unable to discern a meaningful has adopted analogous rules to govern its searches of difference between the two classes of searches,” given electronic devices at the border “to ensure compliance that both would give the Government access to private with customs, immigration, and other laws enforced by pictures, prescription information, travel history, ICE.”12 communications with counsel, location data, and browsing history. 17 District Court Holds that Border Searches of Electronic Devices Violates the Fourth The court did, however, draw a distinction between “cursory” and “non-cursory” searches, defining the Amendment former as “a brief look reserved to determining Alasaad involved eleven plaintiffs, ten U.S. citizens whether a device is owned by the person carrying it and one legal permanent resident, each of whose across the border, confirming that it is operational and electronic devices had been searched at the border at that it contains data.”18 A “cursory” search would fall least once. The plaintiffs filed suit in the United States within the border exception, and would not require District Court for the District of Massachusetts, articulable suspicion.19 asserting that the CBP and ICE guidelines violated the The court granted declaratory judgment for the Fourth Amendment’s protection against unreasonable plaintiffs, holding that non-cursory “basic” and searches and seizures and their First Amendment right “advanced” searches of electronic devices violate the to freedom of expression.13 Plaintiffs alleged that the Fourth Amendment unless there is reasonable material on their devices seized by border officers suspicion that the devices contain contraband.20 included personal pictures of them and family members, confidential information related to their Having found in plaintiffs’ favor on their Fourth work in journalism, and privileged communications Amendment claims, the court held that plaintiffs were with their attorneys.14 not entitled to any further relief for their First Amendment claims.21 On November 12, 2019, the district court held that both “basic” and “advanced” searches of electronic The First Circuit Reverses devices at the border violate the Fourth Amendment On February 9, 2021, a unanimous panel of the First unless there is reasonable suspicion that the devices Circuit reversed, holding that the Government’s contain contraband. 15 The court first analyzed whether policies allowing for “basic” and “advanced” searches these border searches were “routine” or “non-routine,” without probable cause did not violate individuals’ focusing on a traveler’s privacy interest in the contents constitutional rights.22 of his or her electronic devices and the intrusiveness of these searches. Highlighting the “breadth of intrusion The court first rejected plaintiffs’ argument that border into personal information” from a search of a person’s searches of electronic devices require probable cause electronic devices, the court found that both “basic” and a warrant.23 The court cited Supreme Court and “advanced” searches were non-routine and precedent dating back to 1886 holding that border therefore required reasonable suspicion. 16 The court searches fall within a specific exception to the warrant when doing so may expose the individual to criminal 15 Id. at 147-48, 173. prosecution, but that issue was not raised here.