Movement in US Courts on Digital Privacy at the Border

Traditionally, border agents and U.S. government officials have enjoyed broad authority to conduct searches and investigations of travelers coming into the U.S., actions which are primarily couched under two goals: (1) to search for and discover contraband entering the U.S.; and (2) to prevent the admission and entrance of individuals ineligible for admission into the U.S.
In recent years, border agents have extended their search authority to digital devices. At border inspections, U.S. citizens, residents, and foreign travelers alike have been asked, at times, to allow the inspection of phones, computers, and other devices. This includes, in some cases, the confiscation and “advanced” search of devices, which may involve searching, copying, deleting, and/or noting the contents contained within such devices. Along similar lines, visa applicants are now required to provide social media account information when applying for U.S. visas.
Naturally, such actions are quite alarming – we all have untold quantities of information contained on digital devices and within the digital realm that would normally be subject to the highest levels of privacy: location information, internet search history, text and email message contents, photographs, etc. Additionally, substantial First Amendment concerns arise where government officials have the ability to view and document expressive content such as social media posts, one’s choices related to social media associations or “groups”, private photographs that have religious significance, and journalists’ research.
In several recent court cases, plaintiffs seek to limit the scope of such inspections citing many of the concerns noted above. In Alasaad v. Nielsen, a case from the federal district court in Massachusetts, the district court recently joined several U.S. circuit courts of appeals in holding that searches beyond cursory inspection of digital devices are in violation of the Fourth Amendment where “reasonable suspicion” of the presence of contraband or relevant commission of a crime does not exist. This means that border agents must have some factual basis for conducting more than a cursory search of a digital device at the border. Under the Alasaad holding, being asked to demonstrate one’s computer actually operates and powers on would be a cursory search – and onethat makes a lot of practical sense from a safety perspective. However, being asked to power on one’s computer and then allow agents to scroll through files and review content would likely require reasonable suspicion on the part of the border agents.
Importantly, the Alasaad holding appears limited to U.S. citizens and lawful permanent residents, though the district court did note that it saw little evidence to suggest such broad digital inspections furthered any relevant safety or law enforcement purposes during border inspections of foreigners.
Moreover, in another recent court case, DOC Society v. Pompeo, a case filed in the U.S. District Court for the District of Columbia, the plaintiffs are seeking to invalidate a new requirement, begun on May 31, 2019, that visa applicants submit social media account information during the application process. Citing First Amendment and other concerns, the plaintiffs have asked that the district court find the social media requirement in violation of the U.S. Constitution and of procedural requirements. Importantly, the plaintiffs also requested that the U.S. government be prevented from storing and/or using information gained from use of the social media account information. As this case was filed in December 2019, no decision has yet been rendered. However, this case is certainly worth following for any current or potential visa applicant.
Lastly, given the implications involved, these cases and similar cases seem destined for the U.S. Supreme Court in the near future.
By Andrew Howe Attorney at BridgehouseLaw.
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