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Slew of Civil Rights Advocates File Amicus Briefs Urging First Circuit to Require Warrants for Searches of Devices at Border

by Dale Chappell

Several amicus briefs on behalf of dozens of civil rights groups and First Amendment scholars were filed in an appeal in the U.S. Court of Appeals for the First Circuit. They’re calling for the court to require a warrant for searches of electronic devices at the nation’s borders.

The case began with a lawsuit filed by the Electronic Frontier Foundation (“EFF”) and the American Civil Liberties Union (“ACLU”) of Massachusetts in September 2017 on behalf of 11 travelers who had their private electronic devised (smartphones, tablets, laptops, etc.) searched as they re-entered the country.

Ten of the travelers were U.S. citizens and one was a permanent U.S. resident. They claimed they suffered constitutional violations after suspicion less searches were conducted on their devices under government policies allowing such intrusive searches without a warrant. Imagine someone grabbing your phone and browsing your private date, all permissible by a government agency’s policy, and all without any cause for suspicion.

In November 2019, the U.S. District Court for the District of Massachusetts ruled in the EFF and ACLU’s favor, that border officials must have “reasonable suspicion” that a device contains digital contraband to search the device without a warrant. The court concluded that suspicionless searches of devices at the borders otherwise would be unconstitutional.

The government appealed that ruling, and the EFF and ACLU cross-appealed, arguing that device searches at the border should require a search warrant. See Alasaad v. Nielsen, 2019 U.S. Dist. LEXIS 19556 (D. Mass. Nov. 12, 2019), appeal filed, sub nom., Alasaad v. Wolf (1st Cir. Jan. 29, 2020). In response to the opening brief filed by the EFF and ACLU in that appeal, at least seven amicus briefs have been filed by law firms on behalf of civil rights groups and scholars. They’re arguing that warrantless searches not only violate the Fourth Amendment’s prohibition on unreasonable searches, but also the First Amendment’s right to free speech and the Sixth Amendment’s right to proper representation in criminal cases.

The Advancing Justice-Asian Caucus and law firm giant WilmerHale filed an amicus brief on behalf of 24 civil rights organizations, including the Council on American Islamic Relations, the Center for Constitutional Rights, and the CLEAR Project, highlighting how warrantless searches at the border encourage discriminatory profiling of Arab, Middle Eastern, Muslim, and South Asian communities.

The Yale Media Freedom Access Clinic and law firm Brown Rudnick filed on behalf of 18 First Amendment legal scholars, arguing the privacy aspect of warrantless searches, and the Harvard Cyberlaw Clinic filed an amicus brief arguing that warrantless searches chill free speech.

The Knight First Amendment Institute at Columbia University and others filed on behalf of 12 media organizations, underscoring the implications of the First Amendment rights of journalists, arguing that warrantless searches violate the First and Fourth Amendments.

The National Association of Criminal Defense Lawyers (“NACDL”) filed an amicus brief on behalf of criminal defense lawyers, who they argue often carry sensitive information about their clients that shouldn’t fall into the government’s hands. Warrantless searches violate the Sixth Amendment right to counsel, as well as the Fourth Amendment, they say.

The district court recognized that so-called “basic” searches of electronic devices, where border agents scroll through the media on a device without the use of forensic software, should at least require reasonable suspicion, something the Homeland Security and Customs and Border Patrol policies say isn’t required.

“We are proud to see a diverse array of organizations and individuals who have filed briefs to support a warrant standard for border searches of electronic devices,” wrote Saira Hussain, an EFF staff attorney, on EFF’s website. “We anticipate that the First Circuit will hear our case later this year or in early 2021.”



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