Host Craig Willliams and professor Laura K. Donohue discuss the recent circuit court ruling on electronic device searches at the U.S. border.
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Laura K. Donohue is a professor of law at Georgetown Law, director of Georgetown’s Center on National...
J. Craig Williams is admitted to practice law in Iowa, California, Massachusetts, and Washington. Before attending law...
On February 9th, 2021, reversing what had been seen as a landmark legal victory for civil liberties groups, First Circuit Judge Sandra Lynch ruled in the matter of Alasaad v. McAleenan, finding that both basic and “advanced” searches fall within “permissible constitutional grounds” at the U.S. border.
The dispute centers around the search and temporary detainment of electronic devices by U.S. Customs and Border Patrol and ICE agents, as well as the retention of data found on those devices – even in circumstances where no suspicious activity has occurred.
On Lawyer 2 Lawyer, host Craig Williams is joined by professor Laura K. Donohue, director of Georgetown’s Center on National Security and the Law, to discuss this recent circuit court ruling on electronic device searches at the U.S. border, reaction to the ruling, the First and Fourth Amendments, and next steps.
Special thanks to our sponsor, LEX Reception.
Lawyer 2 Lawyer
The Search of Electronic Devices at the U.S. Border
02/22/2021
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Intro: Why do we say, “Well, you can go through this electronic device, you can actually go into their homes on these devices, all of the pictures of their home, all their associations, their intimate relationships, you can look at their friendships, you can look at their contacts, you can look at all of their correspondences though you’re in the den, in their home, rifling through the drawers. Why do we allow that at the border if we don’t allow it in the application of the border search in a three-dimensional world?”
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On February 9, 2021, reversing what had been seen as a landmark legal victory for civil liberties groups, First Circuit Judge Sandra Lynch ruled in the matter of Al-assad versus McAleenan finding that both basic and advanced searches fall within permissible constitutional grounds under the U.S. Constitution. The dispute centers around the search and temporary detainment of electronic devices by U.S. Customs and Border Patrol and ICE agents as well as the retention of data found on those devices, even in circumstances where no suspicious activity has occurred. This matter touches on concerns about our privacy in the digital age, and protections under the First and Fourth Amendments as well as worries to outside observers due to the dramatic increase in these types of searches. According to our guest scholarship, border searches of electronic devices have been rapidly increasing with the U.S. Customs and border protection examining more than 8500 electronic devices back in 2015 increasing to more than 30,000 in 2017.
So, today on Lawyer 2 Lawyer, we’re going to be discussing this recent circuit Court ruling on the electronic device searches at the U.S. border, reactions to the ruling, the First and Fourth Amendments, and next steps, and to help us do that, our guest today is Laura K. Donohue. She’s the professor of law at Georgetown Law. Director of Georgetown Center on National Security and the Law, and the director of the Center on Privacy and Technology. She writes on foreign intelligence, biological weapons, biometric identification, drones, artificial intelligence, emerging technologies, federalism, constitutional law and legal history, or recently testified before Congress on a hearing on warrantless smartphone searches at the border.
Laura K. Donohue: Thanks very much, Craig. Thanks for having me.
Laura K. Donohue: Oh, sure. So, what had happened was there’s this landmark, a kind of a just a huge shock wave, and a kind of in some sense went out across the land for those of us who follow this in November of 2019, when Judge Casper had held the District Court, had held that the suspicionless search of electronic devices at the border violates the Fourth Amendment. It was the first case to come forward in a civil action when it eventually made it to the First Circuit the most recent decision. Basically, the ACLU and the EFF and the ACLU of Massachusetts had brought the case on behalf of 11 travelers whose laptops and smartphones had been searched at U.S. ports of entry without any individualized suspicion. Ten of them had been U.S. citizens.
So, the District Court cited to one of the most well-known cases in this area, U.S. Montoya de Hernandez which was a 1985 Supreme Court case to basically find that the full effect of the border exception does not apply to non-routine searches. They require at a minimum some level of reasonable suspicion. So, for instance, for the forensic search of an electronic device at the border, you have to have some additional reasonable suspicion to do that. So, in Montoya in that case, the woman who was a suspect in the case had swallowed drug balloons, and the Supreme Court said, “Look, you have to have some sort of reasonable suspicion to detain her until the drugs have passed.” That had followed a series of Lower Court cases where the Courts had been saying that “basically, if you’re going to have an intrusive body search, you have to have something more than mere suspicion for that.”
Now in U.S. versus Flores-Montano, which is another related case, the Court had said that, “reasonable suspicion was not necessary to remove a gas tank, right, of a car that that wasn’t an intrusive search.” But the Court had explicitly set aside the possibility of property searches being intrusive enough so as to require a higher level of suspicion, and that was pretty much what the District Court came good on. It was post-Riley. So, remember the Riley was the cellphone case is a search of a cellphone incident to arrest a violation of the Fourth Amendment without a warrant and the Court had basically said, “yes” and that case was followed by two cases: one, in the Fourth Circuit in 2018 U.S. versus Call Sues, and then DDC in 2015 in the United States versus Kim. They basically said that, the search of personal electronic devices are non-routine searches. So, when that case came to Judge Casper, Judge Casper said, “Look, this is a non-routine search. It’s the search of a cellphone, so you know, following Riley, following these more recent cases in 2015 and 2018, if it’s a non-routine search, you have to have something aside from mere suspicion. That is what was overturned by the First Circuit most recently in February of 2021. So, very recently, that’s the case that we’re talking about. It’s remarkable and that, that particular case, the Court rejected any Fourth Amendment, or any First Amendment considerations and basically said that, there’s no warrant or probable cause required for the border search of electronic devices.
Laura K. Donohue: Yeah, simply pure and simple, the card said, “as long as you’re traveling across a border, there is a border exception.” And in fact, it’s less intrusive than the search of a person since you can only look at the data on the device and not deleted or encrypted files. And so, the Court said, “Look, consistent with the Eleventh Circuit, there there’s a circuit split right now on this issue. So, the Eleventh circuit says that, “advanced searches of electronic devices at the border don’t require probable cause and a warrant” that was a case called, the United States versus Figueroa, but the Ninth Circuit actually has come out differently on this, in U.S. versus Kano said, “Look, the border search exception is limited to searches for contraband” and there’s actually a lot of historical evidence to support that position.
Laura K. Donohue: So, there are a few options, right? So, CBP and ICE have very similar policies on searches. So, customs and border protection and the immigration services basically distinguish between what’s called, a basic search and a more advanced search. So, an advanced search is basically, when an officer connects your device to some sort of external equipment through either, wired or wireless connection not just to gain access to the device, but to review, or copy, or analyze the contents, and for that at least for CBP, you have to have supervisory approval. You can only do that where there’s reasonable suspicious of violation of CBP laws, or some national security concern.
Now, that’s different from a basic search. A basic search is, can you simply go into the device and look at what’s on the device. In both cases, the device is not connected to the internet as of 2018. Before that, they could connect it to the internet, they could do anything under the regulatory framework. Now, they can’t connect it online to gain access to your Cloud files, but they can in a basic search get any data off of it, and in an advanced, or forensic search, retrieve any deleted files or encrypted files, or force you to provide the encryption keys to actually get into other files, that’s the advanced search. So, I guess you know, the short answer, it depends Craig. If you don’t want them to be able to access any of your files then, you take a different electronic device with you, right? Because it’s anything actually on that device, and for the advanced forensic search, anything that has ever been on that device, that’s the only way to do it currently.
Laura K. Donohue: It’s not just uh attorney-client privilege, it’s also journalists, right? So, there have been a number of cases where journalists have had their records seized at the border ostensibly under suspicion of wrong or actually, they don’t even need suspicion of wrongdoing to do it. But it has been interesting to see which journalists have actually had their information seized at the border and there was a great amicus brief actually in this case in the Al-assad case by the Knight Foundation at Columbia. They’ve been doing some excellent work in this area, and they actually documented all the journalists that this has happened to as well. So, it does raise some very, very, concerning First Amendment issues as well.
Laura K. Donohue: So, I don’t know what the current numbers are for 2020, to my knowledge, they haven’t been released or for 2019, so I would have to look at the numbers. What was happening is, the numbers were just steadily going up under the Obama administration, and into the beginning of the Trump administration. So, this is kind of expected to be an issue going forward.
You know, it’s kind of interesting that one of the Courts at least the Eleventh Circuit, actually said that, “this is particularly concerning and instead of the deeper privacy interest being more persuasive, the potential for harm that’s carried on electronic devices requires even more searches of these devices.” So, they’re kind of two very competing, diametrically opposed schools of thought from this.
Laura K. Donohue: So, that is one of the real concerns here, right, is what happens to this information once it’s obtained? And that, there’s a whole line of cases now that are coming up on not just border search data, but what happens to data? So, this is the Canada case, right? Where what happens to the data once it’s obtained, how long is it kept, how can it be used, can it be applied to other cases, with whom is it shared? And there, the case law really hasn’t settled on a particular approach to what happens to this information.
It’s kind of an interesting aspect of this is that historically, there were only two reasons why we had a border search exception in the first place, right? One was for contraband to actually intercept contraband, and the other was for immigration purposes, that people presenting at the border were who they said they were, and could therefore be admitted or not based on our immigration policies.
So, if you go back as an originalist matter looking at the colonial period even, you know, England basically saw the colonies as this great opportunity to consolidate their dominance in terms of shipment and trade. And so, the customs laws initially focused just on the goods that were shipped to and from the Americas requiring that they be brought to England and then carried exclusively on English vessels, well those customs laws really focused on contraband because it meant a loss of revenue to the crown. So, following the American revolution, the nascent country was most concerned being able to repay their wartime debts, right? We had the concerns about soldiers that were unpaid. We had uprisings that were occurring because of that, and so, laws were passed to allow the federal government to collect customs revenues. The flip side of it is immigration, right? And there were really just these three reasons why immigration law at the border was given wider latitude, and that was to establish that the travelers were who they said they were; the second was, to ensure that they met requirements for legal entry; and the third, was to collect money right to fund immigration services. So, this radical expansion of the categories to include any potential criminal activity you know, that is just so much broader than the traditional purpose for which the border exception was instituted.
Laura K. Donohue: Not in an age of Cloud computing, not when you can actually just upload it you know? All you have to do is walk down the street take a picture and throw it up on the Cloud, and somebody can pull it down somewhere else. So, the idea that the only way things transit borders is by being carried on electronic device, I think is actually not how the world works.
And also, there’s an analogy here Craig, which is, to mail, right? So, if you think of email as just an electronic form of mail, well, how do we treat mail at the border? Well, it turns out, you can’t open and inspect mail that weighs less than 16 ounces without either consent, or a search warrant, right? Like you have to go get a search warrant for it if that letter is sealed, right? If it’s not sealed, all bets are off, right? Don’t write stuff on a postcard you don’t want people to read.
But outside of that, you have to have a warrant to read it. If it’s larger than 16 ounces, you can only open and search mail if you have reasonable grounds to suspect that it contains money, or weapons of mass destruction, or material related to certain categories like, pornography, or drugs, or nuclear materials, or currency. For trunks or envelopes that are on board vessels, you have to have reasonable cause to believe that contraband is present. So, if you if you think about like, that is our statutory regime as applied to hard mail, why would it be any different for electronic mail?
Laura K. Donohue: It does. In fact, it does.
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Laura as we’ve talked in the first segment, one of the things that occurred to me is, obviously, there are conflicts among the Circuits, there’s District Court rulings, all over the map on this, when are we going to hear from the Supreme Court?
Laura K. Donohue: That’s a $60,000 I guess, it’s no longer a 60,000, but it’s at 60,000,000 of that question. you know, who knows when the Court is going to grant. There are cases that have been submitted, writ of certiorari has been submitted in some of these cases, and the Court hasn’t ruled on them yet. We’ll see, right? We’ll see when they weigh in on it.
There is a Circuit split right now you know. I think in some ways the Court is still wrestling, not in some ways, in almost every way, the Court is still wrestling with how to understand the Fourth Amendment, even within the United States much less the First Amendment, which is, just an anemic doctrine. If you think about its utter failure to keep up with new and emerging technologies in any sort of meaningful way. So, I wouldn’t assume that the Court is going to be too eager to start making moves in regard to the border exception until it really comes to grips with the profound challenges posed by these new and emerging technologies.
Laura K. Donohue: I don’t know, right? Like it’s a little bit hard to say. So, the closest analogy of course, would be the Carpenter case in 2018. So, I wrote an article for the Supreme Court review on this, like looking at Carpenter, and what it means for the Fourth Amendment, and in that case, you know, Justice Gorsuch had some really thoughtful insightful things to say about for instance, bailment. You know, and like, whether we should think about the metadata that we entrust to companies like Facebook, or Google, or Verizon whether we should think about that metadata as a form of bailment, right?
Laura K. Donohue: And it’s kind of set me off on a research project to take a look more closely at what that might look like to restore the property rights concept of the Fourth Amendment in a manner consistent with originalism. And the reason I bring this up is, because I think there’s a tendency to look at the Court and assume that because a justice is an originalist, or you know conservative that they’re necessarily going to come out a certain way on the issue, looking at border searches as an originalist matter, it was only customs and immigration, right? So, in fact, we might end up seeing a very different approach from this Court depending on what happens over the next few years in terms of its makeup, and the types of arguments that find purchase in the justice’s kind of view of the constitutional really profound constitutional questions here, you know.
In carpenter, you had this, it was, you know I find the Fourth Amendment doctrine to be akin to Hamlet’s dissent into insanity. It’s you know, we had you know, we have Fourth Amendment, right? which is, the right of people to be secure in the person’s house and papers and effects against unreasonable search, and seizure. Well, at the founding unreasonable meant, against reason, which was against the reason of the common law, and the common law for paid general warrants, you couldn’t just go into somebody’s home without a warrant, you had to have a warrant and it had to have particulars, which the second part of the Fourth Amendment spells out exactly what those particulars are, right?
So, then along comes Katz in 1967, and pulls a rabbit out of a hat, and says, “No, no, now we’re going to understand reasonable and this relativistic 20th century way as more or less reasonable.” So, suddenly, the common law standards don’t apply, and we’re applying under the concurrence in the case, this sense of whether, the individual thought it was reasonable, or it was reasonable for them to believe it, and whether a society in general. So, we have the both, the objective, and the subjective standard, right?
So, immediately following Katz, we then have exceptions to Katz right amongst which is third-party doctrine. In Smith versus Maryland, right? As well as a series of other cases as well, we carve out or the Court carves out, “well, okay, you have Katz which comes out of nowhere and then, you have this third-party doctrine which carves out an exception.” And then fast forward, and we have Carpenter, which is an exception to the exception, all right? And the reasons laid out in Carpenter for this exception to the exception for cell site location information, all of the criteria that the Court gives could apply equally well to all sorts of other data, right?
So, this is a doctrine that has become so muddied, and so incredibly inconsistent to the point where it’s kind of defies logic, right? The idea that, what you put in your trash in a bag you know, just because this is the case Greenwood, right, just because a raccoon might go through your trash, you have no privacy interest in your garbage, right? That’s an extraordinary claim, or that a Cessna 150 that in Santa°Clara, California in the mid-1980s, you know if somebody could — this is a case, Ciraolo, the Supreme Court said, “Well, look anybody driving by somebody’s house in a double-decker bus, or on top of a truck could look over the fence and see that you’re growing marijuana behind a ten-foot-high fence, behind a six-foot-high fence therefore, you have no privacy interest in it.” Well, it turns out that it was illegal to ride on top of a truck, and there were no double decker buses in California at the time, right?
Laura K. Donohue: So, just as a logical matter, this is not a doctrine that makes sense, and I think a lot of the reason that we’re seeing this just kind of tortuous discussion going on right now within the doctrine about new and emerging technologies is that, it has drifted so far from its original meaning.
Laura K. Donohue: But that’s not quite the Court’s position, right? So, in Verdugo-Urquidez, Chief Justice Rehnquist in that case said that, “if you’re outside the United States, if you have a substantial connection to the United States, the Fourth Amendment applies, right?” So, then you know, the case law becomes this conversation about what constitutes a substantial connection to the United States.
And we certainly have seen at least as a statutory matter increased appreciation for the privacy interests of Americans overseas. So, in 2008, with the introduction of the Foreign Intelligence Surveillance Act, §702, 703, and 704. §703 and 704 of that acts for the first time, extended explicit statutory protection to Americans who were reasonably believed to be outside the United States regardless of whether the collection of electronic surveillance on these individuals took place in, or take place inside the United States or overseas.
So, on the one hand you know, you have this territorial kind of terrestrial tie of Fourth Amendment doctrine, which is in opposite in a world in which, bits and bytes fly around the world, the globe literally, at the speed of light. On the other hand, you do have case law, and statutory provisions, which are staking out broader protections for Americans when they are beyond the borders of the United States.
So, the questioning you know, this turns and this returns us to the border exception which is, so what makes the border any different why would this be kind of a free zone, a free-for-all when in fact there are reasons to extend these interests to Americans both overseas and in the United States?
Laura K. Donohue: Yes, it does. I wrote about that.
Laura K. Donohue: Yes. Yes, they can, but I would note here, which is kind of interesting. So, I write about this in the Yale Law Journal piece looking at the border exception, and the border search of digital devices, which is, even then there are limits, right? So, even the cases where somebody is following an individual when they drive across the border for instance, they can’t go into their home because of the increasing privacy interest. So, if that individual enters a domicile, that exception stops, right? So, that exception is good, while they are in transit, and actually moving.
Laura K. Donohue: And I actually went back, and I looked at the founding and the reason why is because, the idea is contraband. So, if you’re carrying illegal stuff, and you haven’t paid the duties on it, and you managed to get it into the buggy, and the horses start off at a gallop, right? You want to be able to pull that buggy over, and get the contraband, right? Get the moonshine, or whatever it is that was brought in without the duties having been paid on it. And so, the idea is that, even then and still today, if whoever crosses the border, and starts driving goes into a home, you got to get a warrant. You can’t just follow them into the home, and that’s how the cases have come down.
So, once again, like we’re back to the search of electronic devices. So, why do we say, “Well, you can go through this electronic device, you can actually go into their homes on these devices, all of the pictures of their home, all their associations, their intimate relationships. You can look at their friendships, you can look at their contacts, you can look at all of their correspondence, though you’re in the den, in their home rifling through the drawers.” Why do we allow that at the border, if we don’t allow it in the application of the border search in a three-dimensional world?”
Laura K. Donohue: I agree.
Laura K. Donohue: So, in May of 2019, Senators Wyden and Paul and representatives Polis and Farenthold introduced legislation called Protecting Data at the Border Act, that law would have required law enforcement to basically, get a warrant based on probable cause before they could search a U.S. person’s device. So again, distinguishing based on citizenship which frankly, addresses the immigration issue, right? So, it’s not a non-U.S. citizen coming in. So, it’s for a U.S. person. Once you established that you’re a U.S. person, right? Then you have certain protections that come into play.
And this by the way, is also consistent with Chief Justice Rehnquist position in uh Verdugo-Urquidez where he says, “the right of the people to be secure.” Well, the people in the Fourth Amendment are not the people who live in Germany whatever you know, Angela Merkel might say about surveillance of her mobile device, right? It’s not Angela Merkel who falls within the Fourth Amendment. It’s the people from the preamble of the constitution who are part of the political entity called, the United States. So, once you establish that under this bill that was introduced, then law enforcement would have to get a warrant based on probable cause. The Bill also, prohibited individuals, or officials really from delaying, or denying entry to the United States. If you refuse to hand over your passwords, or your PINs or your social media accounts so, there’s been an increasing move to collect social media accounts from people, and then to monitor what they’ve posted on their social media accounts, that legislation would have allowed for broad emergency exceptions based on the exact existing wiretap statutes to Title Three, as well as the U.S.A. Freedom Act, which of course, revised FISA, the Foreign Intelligence Surveillance Act but still, would have required the government to get a warrant after the fact. A
Laura K. Donohue: And it also would have required law enforcement to have probable cause before they could seize a device. Right now, they can simply hold on to it as long as they consider it’s reasonable to hold on to it, to subject it to examination, or make copies, or do whatever they’re going to do with it. So, that law would have been a significant step forward, but it died.
Laura K. Donohue: Yeah.
Laura K. Donohue: As with any new and emerging technology, often you know, the Courts are the last one to wrestle with it. It’s not an area where the Courts can’t act, right? They could act, but I think even more important are things like, the statutory provision that you mentioned Craig, which is, you know, Congress can step up. Congress can step up, and set a higher bar that in this case, the First Circuit going on the most recent ruling considered constitutionally necessary.
You know, we do have a split among the circuits, the Supreme Court could take this up, but until it does so, I think that the time is ripe for Congress to actually step forward, and do something to protect citizen’s privacy.
Laura K. Donohue: Thanks, Craig. I really enjoyed the conversation. Thanks a lot.
Please join us next time for another great legal topic. Remember, “when you want legal, think Lawyer 2 Lawyer.”
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| Published: | February 19, 2021 |
| Podcast: | Lawyer 2 Lawyer |
| Category: | News & Current Events |
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Lawyer 2 Lawyer |
Lawyer 2 Lawyer is a legal affairs podcast covering contemporary and relevant issues in the news with a legal perspective.
