The central issue in Alasaad v. Nielsen is whether the government's warrantless, suspicionless border searches and seizures of digital devices, such as laptop computers and cellular telephones, violate the First and Fourth Amendments to the Constitution.
The plaintiffs are 10 U.S. citizens and one lawful permanent resident subjected to searches of their electronic devices at the U.S. border. The plaintiffs include journalists, students, a NASA engineer, an artist, a business owner, and a driver. These individuals, mostly people of color and Muslims, were all reentering the country from business or personal travel when border officers searched their devices. All of the searches were without a warrant or any individualized suspicion of wrongdoing. Four of the plaintiffs had their devices retained for weeks or months beyond the time they entered the country, and were deprived of the use of their devices.
The number of electronic device searches at the border started increasing in 2016 and has grown under the Trump administration. U.S. Customs and Border Patrol (CBP) officers, for example, have increased their searches of these treasure troves of data—by more than 60 percent within the past year alone. Citing an “exception” to the Fourth Amendment warrant requirement at the border, CBP and U.S. Immigration and Customs Enforcement (ICE) defends these warrantless searches. However, this claim is a classic case of government overreach that fails to consider the unique features of content in the digital age.
In September 2017, the Electronic Frontier Foundation and the American Civil Liberties Union (ALCU) filed a lawsuit in the U.S. District Court for the District of Massachusetts against the federal government on behalf of the 11 travelers, seeking to establish that the government must have a warrant based on probable cause to suspect a violation of immigration or customs laws before conducting such searches.
The Brennan Center, in conjunction with Center for Democracy & Technology, the R Street Institute, and TechFreedom subsequently filed an amicus brief, also urging the Court to declare that the government's policies and practices violate the First and Fourth Amendments.
First, the brief argues that purported exception to the Fourth Amendment’s warrant requirement at the border was developed in the context of searches limited by “physical realities”—namely, that travelers can only carry so many pieces of luggage or only pack so many items inside that luggage. In the digital age, such limitations no longer apply, allowing travelers to carry information so vast and sensitive via electronic devices that a search may be able to assemble detailed, comprehensive pictures of their owners’ lives. As such, the brief argues, Americans have a very reasonable expectation that such sensitive information cannot be searched on a whim at the border.
Second, the brief takes issue with the ICE and CBP’s treatment of certain search methods in policies that may allow access to sensitive information in a search. Amici urge the Court to make clear that these search methods inadequately protect travelers from searches of digital devices, with little to no individualized suspicion.
As increasing amounts of intricate and intimate personal data is stored digitally, questions of First and Fourth Amendment protections for digital data will become even more critical in assuring the future of digital privacy. For this reason, the Court should declare the government’s search practices in violation of the Constitution.