“Our electronic devices are windows into our personal and professional lives. They contain records of our private thoughts, drafts of our work product, contact information of our friends and colleagues, and digital logs of our daily travels,” said Carrie DeCell, Staff Attorney at the Knight Institute. “Allowing the government to search these devices at the border without heightened justification poses a grave threat to the First Amendment.”

In its 2019 decision, the district court recognized the First Amendment implications of warrantless searches of electronic devices at the border but required only that border agents articulate some reasonable suspicion that a device contains contraband in order to justify a search. In today’s brief, submitted to the U.S. Court of Appeals for the First Circuit in Alasaad v. Wolf, the groups argue that the First Amendment requires that border agents obtain a warrant based upon probable cause before accessing the vast stores of private, expressive content on those devices. The brief warns that warrantless searches raise particular concerns for journalists by exposing their newsgathering efforts and inhibiting their “communications with confidential sources, who are often necessary for accurate reporting.” The brief includes numerous examples of agents harassing journalists at the border, including by searching their devices and detaining them for secondary screenings.

“Journalists should not have their devices searched and seized by the government simply for traveling near or across the border,” said Bruce Brown, Executive Director of the Reporters Committee. “This not only violates the rights of reporters to gather and report the news but harms the flow of information to the public as sources may be afraid to talk with journalists if they know that the government has unfettered access to those conversations.”

The policies at issue were promulgated by U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE) and permit border agents to search travelers’ electronic devices without any suspicion of wrongdoing. They provide no protections for journalists who are selected for device searches. In recent years, the Knight Institute has obtained hundreds of complaints filed by individuals whose devices were searched at the border, as well as thousands of reports documenting device searches conducted by CBP and ICE.

Read the brief here.

Read more about this case here.

Media organizations on today’s brief include First Amendment Coalition, Freedom of the Press Foundation, International Documentary Association, Investigative Reporting Workshop at American University, The Media Institute, National Press Photographers Association, New England First Amendment Coalition, The News Leaders Association, PEN America, Society of Environmental Journalists, Society of Professional Journalists, and Tully Center for Free Speech.

Lawyers on the brief include DeCell and Stephanie C. Krent of the Knight First Amendment Institute, and Brown, Katie Townsend, Gabriel Rottman, Caitlin Vogus, and Linda Moon of the Reporters Committee for Freedom of the Press.

For more information, contact: Lorraine Kenny, Knight First Amendment Institute, lorraine.kenny@knightcolumbia.org; Amelia Nitz, Reporters Committee for Freedom of the Press, media@rcfp.org

In a friend-of-the-court brief submitted to a federal district court in Massachusetts in Alasaad, et al. v. Nielsen, et al., the Knight Institute and Reporters Committee argue that because electronic devices store enormous amounts of private information about a person’s thoughts, communications, associations, and movements, searching them without a warrant violates travelers’ First Amendment rights. The searches raise particular concerns for journalists, whose electronic devices also contain sensitive information about their newsgathering activities that, if revealed to the government, could chill their relationships with sources and ability to report freely.

“Cell phones and laptops record the questions we pose in search engines, the articles we read online, the conversations we hold over text message, and the pages we ‘like’ on social media,” said Carrie DeCell, staff attorney at the Knight Institute. “Never before has the government had a single point of access to such a comprehensive collection of our expressive information. The First Amendment precludes the government from examining this kind of information without judicial oversight and good cause.”

“Journalists should not be subject to having their devices searched and seized by the government simply for traveling across the border,” said Bruce Brown, executive director of the Reporters Committee. “Border searches are only increasing, and sources may be less likely to talk with journalists that travel across the border if they know that the government has unfettered access to those conversations. This not only violates journalists’ rights, but harms the flow of information to the public.”

The brief offers examples of the direct burdens on travelers’ First Amendment freedoms of speech and association, citing hundreds of travelers’ complaints obtained by the Knight Institute through Freedom of Information Act litigation. The complaints describe border agents using their broad search authority to scrutinize travelers' digitally recorded thoughts, conversations, and political and religious associations.

The brief also argues that because electronic devices are essential to gathering and reporting the news, journalists cannot leave them behind while traveling. The risk that journalists will be forced to turn over sensitive newsgathering information at the border may chill reporter-source relationships and impede newsgathering.

“For three hours I was questioned, my notebooks and camera was [sic] taken (to make copies I assume) as was my laptop,” wrote a traveler, a U.S. citizen and freelance journalist for The New York Times, in a complaint obtained by the Knight Institute. “I was asked about details of whom I met and interviewed, asked for contacts, telephone numbers, emails and I was physically searched . . . I would like this matter to be solved as soon as possible so I can continue my work as a journalist without being treated as a suspect.”

According to the brief, “Because electronic devices are necessary to newsgathering, searches of these devices at the border can force disclosure to the government of First Amendment-protected activity. These searches are often highly invasive, to a degree that would make reasonable journalists question whether they are really free to conduct their work. 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.”

Journalists may be more likely to face suspicionless searches than the average traveler, according to the brief, because they report on stories of interest to the U.S. government, which may use searches to retaliate against or deter reporting it objects to. The brief notes that journalists’ travel patterns for work – such as making trips frequently, on short notice, from high-risk countries, or on one-way tickets – often draw additional scrutiny.

Attorneys from Jenner & Block and Morgan, Lewis & Bockius LLP provided pro bono representation of the Reporters Committee for Freedom of the Press and the Knight Institute in conjunction with the brief.

Read the brief here.

About the Knight Institute

The Knight First Amendment Institute is a non-partisan, not-for-profit organization established by Columbia University and the John S. and James L. Knight Foundation to defend the freedoms of speech and press in the digital age through strategic litigation, research, and public education.

“Searches of these devices can reveal deeply personal information,” Krent pointed out in a Twitter thread following the Feb. 9 decision in the case, which is being litigated by the ACLU and the Electronic Frontier Foundation. “Our electronic devices contain records of our thoughts, pictures of our intimate moments, contact information for our friends and colleagues, and digital logs of our daily travels.”

An amicus brief, filed by the Knight Institute and the Reporter’s Committee for the Freedom of the Press, highlighted the stories of travelers who were forced to provide passwords for social media, messaging, and email accounts, as well as tales of travelers whose text messages were read, whose videos were watched, and whose address books were downloaded by agents.

Krent noted that the Knight Institute had learned of these stories — and more — through its ongoing Freedom of Information Act litigation against U.S. Customs and Border Protection, the U.S. Department of Homeland Security, and the U.S. Immigration and Customs Enforcement. The Institute has obtained thousands of records of electronic device searches, she added.

In its opinion, the First Circuit acknowledged that the First Amendment provides protection — independent of the Fourth Amendment — against government searches of electronic devices, explained Krent. But, she added, the court ultimately brushed these concerns aside, concluding that warrantless searches of devices at the border are “plainly legitimate,” without actually reckoning with the First Amendment interests at stake.

“The panel was wrong to do so,” argued Krent. “The Supreme Court has long recognized the heightened concerns that attach to searches of expressive materials, and has emphasized the need for increased safeguards in light of technological advancements.”

The Knight Institute recently called on the Biden administration to immediately withdraw the directives authorizing federal agents to conduct warrantless searches of electronic devices at the border, and to issue new rules requiring individualized suspicion and judicial authorization.

"What does CBP do with this information? Does CBP catalog all my contents of my phone? Does CBP start tracking my family and co-workers?" Traveler Complaint 04/26/17  

Dating to the beginning of 2017, the complaints describe how travelers “felt that their privacy was invaded” when border agents asked for the passwords to their cell phones.

• One traveler found the search of his cell phone “uncalled for and very upsetting,” explaining that his phone contained “my personal pictures, my company’s e-mails and my own e-mails,” and that he was “simply not comfortable on what [the agent] did in there with it.” 
• A U.S. citizen wrote that he and his wife “felt violated” when a border agent insisted on looking through their photographs, including “pictures . . . of me and wife,” and refused their request that a woman conduct the search instead.

The CBP complaints further captured travelers’ stories of unfounded accusations and apparent racial discrimination.

• A Swiss citizen “was accused of being a drug smuggler, illegal immigrant, living and working in the United States without permission and even prostitution (!!!).” Having been asked “many very personal questions including whether I had lovers (I quote!) in the U.S.,” the traveler wondered “how is my romantic life any of your business as long as it doesn't involve marriage in the U.S. or anything of the like?!” 
• A German citizen and Canadian resident complained that a border agent searched his phone and, based on an old picture referencing a legal drug, accused him of entering the United States intending to buy illegal drugs. The agent denied him entry and “even told me that he could arrest me but once again without any evidence. Either he watches too much movies or just because I’m black he made that conclusion without any evidence. This is a racial profiling . . . . I have a clean record and never had any problem with the law.” 

Like many of the traveler-redress complaints submitted over recent years, the CBP complaints also describe lengthy and uncomfortable detentions during border searches:

• An elderly Canadian couple of Chinese origin, traveling by bus across the U.S.–Canada border, was stopped and detained “from 1:00 am until 7:00 am” while “every belonging was searched, pictures were taken, finger prints were scanned and our cell phones were taken away.” The couple “insisted on a reason” but border agents “refused to explain, written or oral. . . . We were exhausted with great confusion.” 
• A woman from Egypt, who was pregnant, reported: “They detained me in a room until the following day (about 21 hours) and didn’t allow me to make a call to my husband or my consulate or a lawyer although I repeatedly asked for this. They checked me and forced me to take off my cardigan and my hijab although I explained to them that I wear it for religious purposes but they said I cannot wear it in the detention room. . . . I was jet lagged, so tired and was out of focus. I was not even able to read through the report they made and they asked me to sign. . . . Then I had to sign it when they told me we are not letting you make any calls until you sign it and that if you don’t sign you will be banned from entering the U.S. for five years.” 

These complaints thus suggest that border agents continue to wield their broad search authority to invade the most private and sensitive content stored on travelers’ cell phones and laptops, and to subject travelers to discrimination, harassment, and humiliation during extended searches. They further suggest, however, that travelers are pushing back, demanding recognition of their right against intrusive searches of their electronic devices without cause.

• A U.S. citizen traveling with his wife asked “when did it become ok for custom to violate U.S. citizens’ right and go through our personal cellphone and look at our pictures and write down our IMEI number on phone?” They “wanted to know how all this is legal and right to have been done.”  Threatened with arrest for “talking” and thereby “interfering with the investigation,” they further understood that “we don’t have freedom of speech in USA either.” 
• Another U.S. citizen’s “main concern” with the search of his phone was “the information in the phone like contacts, phone numbers, family pictures, emails, texts messages and so on. What does CBP do with this information? Does CBP catalog all my contents of my phone? Does CBP start tracking my family and Co workers from these information gathering practices? Can CBP provide me with its policy on this practice of cell phone content searches and what it does with the information it gathers? I looked up this exact issue on line and it looks like CBP is making it a common practice to search thru people’s phones. . . . It feels like a violation of the 4th amendment at this point.” 
• Another U.S. citizen felt “like they violated our constitutional rights by invading our privacy, . . . trying to access our phones without our consent, . . . and treating us unfairly to the point where we felt dehumanized because of the way they talked to us.” When the traveler informed a shift supervisor that he was “going to complain or even . . . hire a lawyer to defend my rights his response . . . was ‘I don’t care if you waste your money, nothing is going to happen anyways.’”

This shift supervisor’s response captures the spirit, if not the precise language, of CBP’s official response to travelers’ claims that their rights have been violated at the border. When traveler complaints included contact information, CBP responded with stock explanations, such as:

CBP’s claim that Supreme Court precedent authorizes their suspicionless searches of electronic devices is wrong. The Supreme Court has never considered whether these searches are constitutional. In its first crack at analyzing the constitutionality of border searches, the Court indicated that while customs officials could empty the contents of an envelope to search for drugs, they might need to obtain a warrant before reading any correspondence within that envelope. Much more recently, the Court observed that cell phones can now store “every piece of mail [owners] have received for the past several months,” in addition to “every picture they have taken, [and] every book or article they have read.” Cell phones and other electronic devices are modern-day equivalents of warehouses full of envelopes, each stuffed with its owner’s personal correspondence, private musings, and various membership cards. The Constitution does not permit border agents unfettered access to the contents of these digital envelopes today any more than it gave them unfettered access to the contents of their analog equivalents many decades ago.

These are some of the many American citizens re-entering the country who have been subjected to searches of their cellphones and questioning about their social media.

Such invasions of travelers' private communications are extremely intrusive and have been conducted even when officials don't apparently have reason to think the person has done something wrong. And the government has lately increased the practice dramatically — even though recent legal decisions raise serious questions about its constitutionality.

Because people keep ever more of their personal details on their phones and computers, it is particularly egregious that the government should claim some right to unfettered access to these devices simply because a person travels abroad.

On Monday, the Knight First Amendment Institute at Columbia University — whose mission is to defend free speech in the digital age — filed a lawsuit seeking to compel the government to release information on the number of travelers whose devices have been searched, the policies related to searching cellphones containing sensitive and confidential information, and the findings of internal audits about the device search program.

Border searches of electronic devices by the Department of Homeland Security have risen exponentially in recent years, from about 5,000 device searches in 2015 to about 25,000 in 2016, according to press reports that cited DHS data. During the Trump administration, the intrusions appear to have become even more frequent; in February 2017 alone, border officials searched 5,000 devices.

And why is this happening? A U.S. Customs and Border Protection policy since 2009 authorizes officers to seize and search a traveler's electronic devices even if the person is not suspicious. The policy was always legally dubious, but it has become indefensible in light of the Supreme Court's 2014 landmark decision in Riley v. California.

The court held that police generally can't seize a person's cellphone as part of an arrest without first obtaining a warrant that is backed by evidence that the cellphone contains evidence of a crime and is signed by a judge.

A cellphone contains "the sum of an individual's private life," Chief Justice John Roberts wrote for the court. The search of a smartphone is nothing like the search of a duffle bag. What people store on their cellphones -- including Internet browsing history, medical records, family photos, GPS location data, financial information, and apps related to dating, addiction and hobbies -- is vastly more sensitive than what people used to carry in their pockets, backpacks, or purses, or even keep in their homes.

Searches of electronic devices when there is no basis for suspicion to search them raise serious concerns relating to the freedoms of speech and association. As Justice Sonia Sotomayor observed in another recent Supreme Court case, "[a]wareness that the government may be watching chills associational and expressive freedoms." Americans will be justifiably concerned about speaking freely if, simply because they travel internationally, the government is given unlimited authority to read through their emails, texts, social media posts and the like.

The implications may be especially significant for a free press. Suspicionless searches of cellphones threaten the ability of journalists and their sources to report on important international issues, which deprives the public of its right to know about those issues.

Numerous reports show that journalists, lawyers and activists — particularly those who cover civil wars and terrorism or travel to conflict areas — have had their cellphones and devices searched at the U.S. border, where officers have demanded their passwords and read their communications with sources.

Those sources will likely be leery of sharing information with journalists and activists if their identities and reports may be revealed to the U.S. government at the border.

Anecdotal evidence about how the government is using its authority to conduct suspicionless electronic device searches is disturbing but incomplete. The public has a right to see a fuller picture, as many civil liberties groups have asked the government to provide.

Our freedom of information lawsuit request seeks a range of information, but one of the items we seek may be especially revealing: We've asked for the database of the Treasury Enforcement Communications System that houses information about every device-search at the border, including the reason for the search, the country of origin of the traveler, and the traveler's race and ethnicity.

The government created this database in response to concerns voiced by the Department of Homeland Security's civil rights office several years ago about the possibility that searches might be conducted in a discriminatory or otherwise unlawful way.

Disclosure of the database — perhaps with narrow redactions to protect legitimate national security and privacy interests — would help the public understand the answer to basic questions about the government's program: How often do border officers search travelers' cellphones and other devices, and for what reasons?

Why did the incidence of cellphone searches sharply increase in the past 15 months? Does the department follow its own rules for taking special measures to protect searches of privileged and other sensitive content stored on cellphones, and what are those rules?

The courts should require the government to disclose this information and quickly, and the practice of delving into travelers' private lives at the border without reason to suspect them of wrongdoing should ultimately end. Everything we know about the government's searches of devices at the border suggests the government is dramatically expanding an unconstitutional program.

Read more about the Institute's lawsuit for records relating to searches of devices at the border here.