Border Agents Cannot Search Travelers’ Digital Devices without Reasonable Suspicion, Judge ruled

A district court judge in Boston ruled that U.S. border agents must have ‘reasonable suspicion’ to search travelers’ electronic devises at airports and other ports of entry.  

Background of the Decision

In recent years there has been a growing practice for border agents to search smartphones, laptops and other electronic devices travelers brought into the U.S. Since President Trump took office, the number of such searches has more than doubled, rising from about 8.500 to 30,000. Civil liberties group filed a lawsuit in 2017 on behalf of eleven travelers who had their devices searched without a warrant.

All these travelers have valid status in the U.S.: ten of them are American citizens while one is a green card holder. Among them were members of ethnic minorities or Muslim faith.  They include an aerospace engineer working for the government as well as a military veteran.  

The Ruling

Federal judge Denise Casper ruled on Tuesday that CBP and ICE agents must provide specific facts to justify searching a traveler’s devices for contraband. This ‘reasonable suspicion’ standard is higher than what agents had been accustomed to while they conducted searches of digital devices. The judge wrote that the requirement should balance both the “important privacy interests involved in searching [personal] electronic devices” and the government’s “paramount interests” in protecting the border.  She ruled that agency policies to allow searches without cause were unconstitutional.

Civil liberties activists lauded the decision for advancing Fourth Amendment protection for international travelers.  However, the judge did decline to apply a probable cause standard that would require agents to secure warrants before searching devices. It is a small triumph for international travelers entering the United States.