Test case by ACLU and EFF upholds privacy interest in e-devices

The question of when it is legal for border officials to search the electronic devices of travelers has been a contentious one for some time, both in Canada and in the United States. The dominant argument made by governments has been that privacy interests are low at the border, while national security and law enforcement interests are high, and therefore devices should be subject to search at any time. Civil society organizations and defendants have asserted that due to the intense privacy interest in the large amounts of data carried in computers and smart phones, searches are much more invasive than would be the case for other things a traveller might have with them (such as a suitcase), and have advocated for requiring the state to have reasonable grounds or reasonable suspicion before conducting a search.

In the recent case of Alasaad v. Neilsen, a U.S. District Court for Massachusetts has ruled that searches of the devices carried by 11 travellers (10 US citizens and one permanent resident) by US Customs and Border Protection (CBP) and Immigrations and Customs Enforcement (ICE) violated the US 4^th Amendment, because they were done in the absence of reasonable and individualized suspicion that contraband or evidence was present. The action was brought by the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF), and one could infer that the plaintiffs were carefully chosen due to the circumstances and effects of the searches that were done. Plaintiff Alasaad was a Muslim woman who objected to male officers searching her phone and viewing pictures of her and her daughters without their headscarves, yet was subject to search without grounds on two different occasions. Other searches saw border officials viewing privileged solicitor-client material, confidential work data belonging to an employee of NASA, and journalistic work product with lists of contacts. One plaintiff, a writer, was asked about her blog posts after the search, and when her phone was returned the Facebook app was open to her “friends” page, which had not been open when the phone was taken. The majority of the plaintiffs had their devices searched more than once. The court observed that the harm to the plaintiffs’ interests from the searches was ongoing, since the evidence indicated that data from the devices would be retained and “used to inform decisions on future searches.”

The court noted that CBP and ICE had policies under which “basic” searches (searches of devices by hand) did not require any grounds, while “advanced” searches (involving hooking the device up to another computer) required reasonable suspicion. The court rejected the government’s argument that both of these searches were “routine” and thus subject to the “border search exception” to the 4^th Amendment. Even a basic search could turn up extremely personal and private information on a device, including metadata, particularly given that even cell phones have search functions that can be used. This being so, it was clear that a standard of “reasonable suspicion” should apply to both, the standard being defined as “a showing of specific and articulable facts, considered with reasonable inferences drawn from those facts, that the electronic device contains contraband.” While granting the plaintiffs’ request for declaratory relief, the court declined their request to issue a nation-wide injunction against searches not based on reasonable suspicion.