The central issue in Merchant v. Mayorkas is whether the government’s warrantless, suspicionless border searches and seizures of digital devices, such as laptop computers and cellular telephones, violate the Fourth Amendment to the Constitution.
The plaintiffs are 8 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.
Update, June 29, 2021
On June 28, 2021, the Supreme Court denied the ACLU and EFF’s petition for certiorari in Merchant v. Mayorkas. Though it is disappointing that the Court elected not to rule on the border exception in this case, they may take the opportunity to do so in the future.
Update, June 3, 2021
On April 23, 2021, the ACLU and EFF filed a petition for certiorari in the Supreme Court, requesting the Court to clarify an issue on which four different appellate courts have ruled differently—specifically, what level of suspicion (i.e. probable cause, reasonable suspicion, or none) is required to search a traveler’s electronic devices, and the scope of that search. The petition further asks the Supreme Court to impose a minimum requirement of reasonable suspicion for any such search conducted at the border.
On May 24, the Brennan Center, Tech Freedom, and the Center for Democracy and Technology, represented by Covington & Burling LLP, filed an amicus brief in support of the ACLU and EFF’s petition. The brief argues that the government’s distinction between basic and advanced searches of electronic devices is immaterial, as both types of searches implicate the same privacy issues—but conducting an advanced search requires reasonable suspicion, whereas basic searches require no suspicion at all. The brief further contends that suspicionless searches of travelers’ electronic devices at the border violate the Fourth Amendment because of the combined impact of the ubiquity of electronic devices in travel, the increasing capabilities of electronic devices, and the amount of aggregated information available on a traveler’s electronic device. The brief concludes with the point that this case, as a civil suit seeking only injunctive relief regarding the government’s increasing border searches without individualized suspicion, is an ideal vehicle for the Court to rule on the relevant issues.
You can read the Brennan Center’s amicus brief here.
Update, February 17, 2021
On February 9, 2021, the First Circuit reversed the District Court’s ruling, determining that searches of electronic devices at the border do not require a warrant or probable cause. The Court upheld the constitutionality of two policies allowing border agents to perform “advanced” searches of electronic devices with reasonable suspicion using external equipment to access and review, copy, or analyze information stored on the device. “Basic” searches of electronic devices not using such equipment do not need reasonable suspicion.
The First Circuit reasoned that at the border “the Government’s interest in preventing the entry of unwanted persons and effects is at its zenith” and a warrant requirement would cause delays that would “hamstring the agencies’ efforts to prevent border-related crime and protect this country from national security threats.”
The Court also held that the district court erroneously narrowed the scope of permissible border searches of electronic devices to evidence of contraband contained in the devices themselves. Rather, the First Circuit determined that “[a]dvanced border searches of electronic devices may be used to search for contraband, evidence of contraband, or for evidence of activity in violation of the laws enforced or administered by CBP or ICE.”
The court’s decision will have profound implications on digital privacy in the expansive border zone where two-thirds of the U.S. population resides.
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 Protection (CBP) officers have increased their searches of these treasure troves of data—the year that the plaintiffs filed their suit, electronic search devices in the border increased by more than 60 percent from the previous year. Citing an “exception” to the Fourth Amendment warrant requirement at the border, CBP and U.S. Immigration and Customs Enforcement (ICE) defend 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 (ACLU) 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 complaint argued that the government’s practices at the border violated both the First and Fourth Amendments.
The Brennan Center, in conjunction with the Center for Democracy & Technology, the R Street Institute, and TechFreedom, subsequently filed an amicus brief in support of the plaintiffs’ complaint, urging the Court to declare the government’s border search policies unconstitutional.
District Court Decision
The District Court ruled that the government’s suspicionless searches of electronic devices at the border violated travelers’ Fourth Amendment rights. The decision followed similar rulings in the Fourth and Ninth Circuit Courts of Appeals in requiring a show of individualized suspicion of digital contraband for border agents to conduct forensic searches of digital devices.
The government appealed the District Court’s ruling and the case now sits in front of the First Circuit.
Brennan Center’s Amicus Brief to the First Circuit
In August of 2020, the Brennan Center, the Center for Democracy and Technology, the R Street Institute, and TechFreedom filed another amicus brief, this time in the First Circuit. The brief supports the plaintiffs-appellees in arguing in favor of affirming the District Court’s decision, and argues further that the First Circuit should impose a warrant requirement for border searches of electronic devices.
In advocating for a warrant requirement for these searches, the brief argues that the 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. Further, courts across the nation have recognized the inherently intrusive nature of searches of electronic devices and imposed warrant requirements accordingly.
At minimum, the brief argues, the First Circuit should uphold the District Court’s ruling, which deemed suspicionless manual searches of electronic devices at the border to be in violation of the Fourth Amendment. With a manual search, agents can easily access the vast quantities of personal information stored on these devices—making the distinction between manual and forensic searches largely moot with respect to relative intrusiveness.
It also urges the court to require a warrant for any manual or forensic searches of digital devices at the border. As increasing amounts of intricate and intimate personal data are stored digitally, questions of 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.