Court: U.S. Court of Appeals for the First Circuit
Date Filed: August 7, 2020
Background: Representing several international travelers, including journalists, the American Civil Liberties Union and the Electronic Frontier Foundation sued the heads of the U.S. Department of Homeland Security, U.S. Customs and Border Protection, and U.S. Immigration and Customs Enforcement, arguing that suspicionless searches of electronic devices at the U.S. border violated Fourth Amendment protections.
The district court agreed with the plaintiffs, but held that border agents needed to meet only the “reasonable suspicion” standard, rather than the more stringent “probable cause” standard, before searching a traveler’s devices. The government and the plaintiffs both appealed to the U.S. Court of Appeals for the First Circuit.
Our Position: Border officials should be required to seek warrants based on the higher probable cause standard before they can search electronic devices.
- When government officials search electronic devices at the border, they chill press freedom, especially communication between journalists and their confidential sources.
- Government searches of electronic devices at the border burden travelers’ freedoms of speech and association.
- Suspicionless searches of electronic devices at the border violate the First Amendment.
- First Amendment and Fourth Amendment concerns regarding the electronic device searches are intertwined, as press freedom depends on journalists’ ability to protect their work from government intrusion. This Court must require “scrupulous adherence” to the Fourth Amendment’s warrant requirement.
Quote: “Electronic device searches are highly invasive, especially for journalists. The contents of electronic devices can reveal the stories a journalist is developing, with whom she is communicating, and her specific travel plans. Disclosure of such information can expose sensitive newsgathering methods and deter potential sources from speaking to members of the media.”
Related: This is the second friend-of-the-court brief that the Reporters Committee and the Knight First Amendment Institute have filed on behalf of the plaintiffs in this case. At the trial court level, when DHS, CBP, and ICE asked the district court to dismiss the case, the Reporters Committee and the Knight First Amendment Institute, represented pro bono by attorneys from Jenner & Block and Morgan, Lewis & Bockius LLP, filed a brief urging the court to deny the government’s motion. The court allowed the case to continue.
According to a Reporters Committee analysis of U.S. Press Freedom Tracker data, journalists reported being subjected to secondary screenings, questionings, or searches by U.S. Customs and Border Protection 16 times in 2019, compared to 11 in 2018 and 16 in 2017. Seventy-five percent of the stops in 2019 occurred at the U.S.-Mexico border.