Published on: Friday, February 12, 2021

Can the government search your cellphone, without a warrant or probable cause, merely because you are crossing the border? First Circuit: yes. “Basic” searches require no suspicion at all; and with “reasonable suspicion,” border agents can conduct an “advanced” search involving the use of external equipment to review, copy, and analyze your data. Moreover, contrary to the Ninth Circuit’s prior decision in United States v. Cano, which held that agents who don’t have reasonable suspicion can only search for digital material that is itself illegal, not for material that might simply prove that a person did something illegal searches, the First Circuit held they are not limited to contraband and can seek out evidence of other crimes.

Searches of electronic devices at the border are rapidly increasing. There were 30,524 searches in fiscal 2017 when this case was filed, according to Customs and Border Protection figures, up from 8,503 only two years earlier. 

The ACLU and the Electronic Frontier Foundation brought this suit on behalf of a group of returning Americans — a military veteran, a NASA engineer and a business owner, among them — who had experienced border searches. All are Muslims or people of color as well as U.S. citizens or lawful permanent residents.  

“Given the volume of travelers passing through our nation’s borders, warrantless electronic device searches are essential to … adequately protect the border,” the court said.

The First Circuit differentiated this case from a 2014 Supreme Court ruling that said police can’t search suspects’ cellphones after arresting them, arguing that searches at the border are fundamentally different from searches incident to arrest. 

The case is Alasaad, et al v. Wolf, 20-1077 (1st Cir. Feb 10, 2021).