Phone Search at Border

Can Border Officers Search Your Phone?

A Summary Judgment Order issued last week in Alasaad v. McAleenan was a major win for privacy rights at the border. Border officers will now need to have a reasonable suspicion of contraband to conduct a phone search.

The case was brought by 11 plaintiffs, ten U.S. citizens and one lawful permanent resident, who allege that searching of their electronic devices at the border violates the Fourth Amendment of the U.S. Constitution. The Fourth Amendment protects against unreasonable searches and seizures. Each of the Plaintiffs had their electronic devices searched at the border at least once. Searches included phones (locked and unlocked) and in some cases, laptops.

One of the plaintiffs, Nadia Alasaad, had her iPhones searched at the border twice despite her objections. She is religious and did not want CBP officers, especially male officers, viewing photos of her and her daughters without their headscarves.

Generally, warrants are not required for a border search as people have a reduced expectation of privacy at the border. But that does not mean that such searches are limitless. There are legitimate privacy concerns at play that need to be weighed against the legitimate governmental interests.

CBP and ICE are the two agencies primarily responsible for border searches. CBP conducted approximately 108,000 searches of electronic devices at the border from FY 2012 through FY 2018. In January 2018, CBP updated its border search phone policy and under the new policy, there is no requirement of “reasonable suspicion” for a basic search.

According to the Summary Judgment Order issued by the U.S. District Court of Massachusetts, the CBP and ICE policies, as presently defined, violate the Fourth Amendment to the extent that the policies do not require reasonable suspicion that electronic devices contain contraband for there to be searches and seizures of said devices. Expect for CBP and ICE to respond with new policies for border searches of phones.

The entire Summary Judgment Order can be found here.