Civil Rights and First Amendment Defenders Urge First Circuit to Require a Warrant for Border Device Searches - EFF

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Last month, EFF, along with co-counsel ACLU and ACLU of Massachusetts, filed a brief in Alasaad v. Wolf urging the U.S. Court of Appeals for the First Circuit to require a warrant for searches of electronic devices at the border. In fiscal year 2019, border officers searched over 40,000 electronic devices, more than an eight-fold increase since 2012. Because of the significant privacy interests that travelers have in the digital data on their devices, we argued that the government’s warrantless, and usually suspicionless, searches and seizures of electronic devices violate the First and Fourth Amendments to the U.S. Constitution.

Seven amicus briefs were filed in support of our position:

• Advancing Justice - Asian Law Caucus and law firm WilmerHale, on behalf of 24 civil rights organizations including the Council on American Islamic Relations, the Center for Constitutional Rights, and the CLEAR Project, filed an amicus brief highlighting how the government’s border search policies disparately target members of the Arab, Middle Eastern, Muslim, and South Asian communities, and that a warrant standard can help curtail discriminatory profiling.
• The Constitutional Accountability Center filed an amicus brief discussing how the Fourth Amendment’s protection of personal papers from searches requires border officers to obtain a warrant or, at minimum, have reasonable suspicion before search.
• The Yale Media Freedom and Information Access Clinic and law firm Brown Rudnick, on behalf of 18 First Amendment legal scholars, filed an amicus brief focusing on the privacy dimension of free expression and explained that the First Amendment requires a warrant for border searches of electronic devices.
• The Harvard Cyberlaw Clinic, on behalf of the Harvard Immigration and Refugee Clinic, filed an amicus brief arguing that border device searches have profound chilling effects on free speech, which unduly impacts immigrant communities.
• The Knight First Amendment Institute at Columbia University, the Reporters Committee for Freedom of the Press, and 12 media organizations filed an amicus brief that underscored the implications of electronic device searches at the border on the rights of journalists, and argued that a warrant is necessary under the First and Fourth Amendments.
• The National Association of Criminal Defense Lawyers filed an amicus brief highlighting the impact of border device searches on criminal defense attorneys who often carry sensitive information relating to clients, and argued that a warrant is necessary under the Fourth and Sixth Amendments.
• Law firm Covington & Burling, on behalf of the Center for Democracy and Technology, Brennan Center for Justice, R Street Institute, and TechFreedom, filed an amicus brief focusing on the intrusiveness of so-called “basic” searches and argued that the Fourth Amendment requires a warrant, or at least reasonable suspicion, for border searches of electronic devices.

EFF, ACLU, and ACLU of Massachusetts originally filed this lawsuit in September 2017 on behalf of 11 travelers, 10 U.S. citizens and one permanent resident, who have all suffered warrantless, suspicionless device searches due to the government’s policies.

In November 2019, the district court ruled that border officers must have reasonable suspicion that a device contains digital contraband for any search of the device’s digital content. As part of this ruling, the district court concluded that wholly suspicionless device searches at the border are unconstitutional. The government appealed on this issue, and we cross-appealed on the issue of whether border device searches actually require a warrant.

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. We anticipate that the First Circuit will hear our case later this year or in early 2021.

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Civil Rights and First Amendment Defenders Urge First Circuit to Require a Warrant for Border Device Searches - EFF
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