The last two decades have seen a dramatic expansion of government surveillance as the technological capacity to closely monitor people has grown with the shift to the cloud and the proliferation of digital metadata. In turn, courts have been asked to apply a nearly 250-year-old document, the U.S. Constitution, to law enforcement practices that have evolved faster than the law can keep up.
Now, the U.S. Court of Appeals for the Eighth Circuit is considering a question that has split federal circuits — whether the warrantless seizure and subsequent forensic search of an electronic device is constitutional under the border search exception to the Fourth Amendment warrant requirement, and if so, what level of scrutiny is required.
In United States v. Xiang, Haitao Xiang was stopped by U.S. Customs and Border Protection at O’Hare airport as part of the Justice Department’s now-discontinued China Initiative while traveling to visit family in China. CBP seized six electronic devices from Xiang and sent them to an FBI division in St. Louis, Missouri. Ten days after the initial seizure, FBI agents forensically imaged the devices and searched them for evidence of intellectual property theft. The FBI eventually obtained a warrant authorizing the search and seizure of the devices seven days after they were searched and 17 days after they were seized.
In a friend-of-the-court brief authored jointly with the Knight First Amendment Institute at Columbia University, the Reporters Committee argues that the forensic search and seizure of Xiang’s six devices was unconstitutional not just under the Fourth Amendment but also under the First Amendment, and cannot be supported by the border search exception to the warrant requirement.
First, border searches impinge on First Amendment expressive rights, and therefore must meet heightened scrutiny. As the U.S. Supreme Court has stated, our electronic devices hold vast troves of personal and expressive information providing an “intimate window into a person’s life,” and such a search raises independent First Amendment concerns. A forensic search is extremely intrusive, allowing law enforcement to search through an exact replica of the contents of the device.
Our brief highlights the specific negative consequences of these searches on journalists, who are often traveling and reporting at the border with numerous devices holding confidential source information, photographs, videos, audio recordings and general newsgathering material.
Past incidents demonstrate reporters are particularly likely to be targeted for border searches, and have even been targeted in a secret database CBP maintained to monitor reporters covering issues related to migrant crossings at the U.S.-Mexico border. These are only a few examples of the uniquely heavy burden imposed on the free press by the unfettered search and seizure of devices at the border, which is to say nothing of the burden on the expressive and associational freedoms felt by ordinary travelers who are similarly subjected to these unconstitutional practices.
Second, this practice does not meet the “scrupulous exactitude” required by the Fourth Amendment when a search burdens free expression, and cannot be supported by the border search exception. The lower court erred in applying the border search exception, our brief argues. Since the inception of the border search exception, the Supreme Court articulated that a border search chilling free speech raises independent First Amendment concerns. In numerous recent decisions, the Supreme Court has made clear that electronic devices operate differently from normal searches, as it has refused to extend the third-party doctrine and the “search incident to arrest” warrant exception to cell phone searches.
This precedent demonstrates that the border search exception similarly should not be blindly applied to electronic searches at the border, which pose a particularly intrusive burden on newsgathering, and also chill expressive and associational freedoms for all travelers generally. Therefore, we argue that a warrant, and nothing less, is required to safeguard these rights.
We will provide updates on this case as it proceeds.
*Jenna Monnin is a policy intern at the Reporters Committee for Freedom of the Press.
The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with Stanton Foundation National Security/Free Press Legal Fellow Grayson Clary and Technology and Press Freedom Project Legal Fellow Gillian Vernick.