Federal Court Rules Suspicionless Border Searches of Electronic Devices Unconstitutional

On November 12, 2019, the US District Court of Massachusetts issued a ruling that U.S. Customs and Border Protection (CBP) agents must have reasonable suspicion of digital contraband before searching a traveler’s phone, laptop, or other digital device at U.S. ports of entry. The case was filed by the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF) on behalf of 11 travelers (10 U.S. citizens and 1 lawful permanent resident) whose smartphones and laptops were searched without individualized suspicion at U.S. ports of entry. In the ruling, the Court declared that the CBP’s search and/or seizure of the plaintiffs’ electronic devices, without reasonable suspicion, violated the Fourth Amendment.

The Department of Homeland Security (DHS) updated its policies governing border searches of electronic devices in January 2018. Under the new policies, CBP agents are allowed to search electronic devices at the border for "information stored on the device" that is accessible through software on the device. Per the ACLU, “the number of electronic device searches at U.S. ports of entry has increased significantly. Last year, CBP conducted more than 33,000 searches, almost four times the number from just three years prior.”

The District Court did not issue an injunction and has yet to issue an order on how the government is to implement its ruling. We will continue to monitor the CBP policy and the federal case, and will provide updates when more information becomes available.