Lawsuits, Legislation Challenge Warrantless Searches of Electronic Devices at the Border in Texas and Elsewhere

The border search exception to the Fourth Amendment’s warrant requirement allows law enforcement officers at or near a national border, such as the U.S.-Mexico border in Texas, to search people and their personal effects without a warrant. In some situations, police might not even need a reasonable suspicion of federal or Texas criminal or immigration violations. Courts have placed some limits on the border search exception, but the question of whether law enforcement officers at the border can search the contents of electronic devices without a warrant remains unsettled on a national level. Many electronic devices have considerable storage capacity, leading to concerns over not only individual privacy but also professional and commercial privacy issues like trade secrets. Proposed legislation, and at least one lawsuit, are seeking to place limits on border searches of laptop computers, smartphones, and other devices.

Courts have long held that travelers at the U.S. border have a lessened expectation of privacy. One of the few courts to address the question of electronic devices held that the warrantless search of a person’s laptop did not violate the Fourth Amendment because the search did not cause “exceptional damage” to the computer, nor was the search conducted in a “particularly offensive manner.” United States v. Arnold, 533 F. 3d 1003, 1009 (9th Cir. 2008). The Ninth Circuit limited that ruling several years later, holding that a reasonable suspicion is required for the forensic examination of electronic devices in some cases. United States v. Cotterman, 709 F.3d 952 (9th Cir. 2013) (en banc).

Proposed legislation in Congress has sought to protect individuals at the border from warrantless searches of electronic devices. The Travelers’ Privacy Protection Act of 2008, which did not become law, stated that “laptops and similar electronic devices” are different from other personal effects, since they “can contain the equivalent of a full library of information about a person, including medical records, financial records,…and privileged work product.” S.3612 § 2(4) (110th Cong., Sep. 26, 2008). The bill established strict requirements regarding suspicion, limited how searches could be conducted, and set restrictions on the use and retention of information obtained.

The Protecting Data at the Border Act was introduced in April 2017 and is still pending, although it has yet to receive a hearing in committee. It specifically references a U.S. Supreme Court decision prohibiting warrantless searches of the contents of cell phones, Riley v. California, 573 U.S. ___ (2014). It states that people “have a reasonable expectation of privacy in the digital contents of their electronic equipment.” S.823 § 2(1) (115th Cong., Apr. 4, 2017). It would prohibit law enforcement officials from “access[ing] the digital contents of any electronic equipment belonging to or in the possession of a United States person at the border without a valid warrant supported by probable cause.” Id. at § 5(a)(1).

A lawsuit against officials with the Department of Homeland Security alleges that warrantless searches and confiscation of electronic devices at the border violate the First and Fourth Amendments. Alasaad, et al. v. Duke, et al., No. 1:17-cv-11730, am. complaint (D. Mass., Sep. 13, 2017). The plaintiffs, 10 U.S. citizens and one permanent resident who experienced such searches, are seeking injunctive and declaratory relief.

These blog posts are meant to be illustrative only. Unless expressly stated to the contrary herein, these matters are not the result of any legal work of Michael J. Brown, but are used to communicate a particular point of view. Michael J. Brown does not claim credit for any legal work done by any lawyer or law firm either generally or specifically, with respect to the matters contained in this blog.

Board-certified criminal defense lawyer Michael J. Brown has advocated for people’s rights against state and federal charges in West Texas courts for more than 20 years. To schedule a confidential consultation to see how we can help you, you can contact us today online or at (432) 687-5157.

More Blog Posts:

How The Border Search Exception May Affect West Texas Residents, Texas Criminal Lawyer Blog, May 25, 2017

Federal Lawsuit Addresses Government’s Authority to Detain, Search Individuals at U.S. Border Without a Warrant, Texas Criminal Lawyer Blog, October 30, 2015

Appellate Court Limits Law Enforcement’s Ability to Search Computers Seized During Border Inspections, Texas Criminal Lawyer Blog, April 19, 2013

Contact Information