Fri, 18 May 2018

Judge Allows Fourth Amendment Challenge Of Warrantless Device Searches At The Border To Continue
Furnished content.


A federal judge has allowed the ACLU, EFF, and the several plaintiffs they represent to continue their Fourth Amendment lawsuit against DHS, ICE, and CBP. The plaintiffs are challenging the Constitutionality of border device searches -- something that has skyrocketed in recent years. As it stands now, these agencies believe nothing stronger than reasonable suspicion is needed to perform highly-intrusive searches. In many cases, not even suspicion is needed, thanks to the "border search" exception to the Fourth Amendment courts have carved out for the government.Policies for agencies performing border device searches are pretty much identical. All allow searches and seizures of devices without individualized suspicion. This warrantless, suspicionless search may also result in the device being confiscated for weeks or months while a forensic search is undertaken -- again, supposedly without violating travelers' rights. CBP's policy was altered this year, requiring forensic searches and the mirroring of devices to at least reach the level of reasonable suspicion. Better than ICE's policy, but still nothing approaching a warrant.The government sought to have the lawsuit dismissed, claiming the plaintiffs had no standing to assert violations, much less seek injunctive relief on the theory they would likely be subjected to intrusive device searches the next time they traveled.The court disagrees with all the government's arguments. The government claimed the number of device searches -- although steadily increasing -- is still a small percentage of the overall whole. The court points out it doesn't really matter what the percentage is. It's whether or not CBP and ICE perform these searches routinely. From the decision [PDF]:

Defendants contend that Plaintiffs have also failed to satisfy the “substantial risk” inquiry. Plaintiffs allege that CBP data demonstrates that it is on track to conduct approximately 30,000 searches this fiscal year. Defendants point out, however, that those searches only amounted to 0.008% of the approximately 189.6 million travelers who arrived at U.S. borders during this period. Defendants argue that this future search probability—which they characterize as a “slight chance” of search—is not sufficient to establish standing here. There is no numerical threshold, however, at which likelihood of harm becomes a “substantial risk” of harm. See Kerin v. Titeflex Corp., 770 F.3d 978, 983 (1st Cir. 2014) (noting that “a small probability of a great harm may be sufficient”). Although 0.008% may be a small percentage of total travelers, the searches still occur at an average of approximately 2500 searches per month. In SBA List, the Supreme Court supported its conclusion that there was a substantial likelihood of future harm with the explanation that proceedings enforcing the statute in question were “not a rare occurrence,” with twenty to eighty such cases occurring per year. Against this backdrop, 30,000 searches per year is not a “rare occurrence,” even if it makes up a small percentage of total travelers.

Defendants also argue that Plaintiffs’ allegations of future harm are impermissibly “vague” and speculative. They point to Reddy for the proposition that in the First Circuit, “‘[s]peculation’ that a government actor ‘might in the future take some other and additional action detrimental to’ Plaintiffs, is ‘not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm.’” In Reddy, however, the First Circuit held that the plaintiffs’ assertions of standing were speculative as to a New Hampshire buffer zone statute, emphasizing that the statute had not yet been enforced. Here, by contrast, Plaintiffs challenge policies that are in place and are being actively enforced.[...]Plaintiffs’ alleged future injury does not depend upon defendants’ future illegal conduct untethered to a pattern of past practice, cf. Los Angeles v. Lyons, 461 U.S. 95, 102 (1983) (concluding that plaintiff subject to illegal arrest procedure made no showing that he was likely to be arrested and subjected to illegal procedure again), but rather upon recurring conduct authorized by official policies. That is, Plaintiffs’ subjection to prior searches further bolsters their allegations of likely future searches.

As an initial matter, the Court is not persuaded that Riley’s reasoning is irrelevant here simply because Riley’s holding was limited to the search incident to arrest exception, see Riley, 134 S. Ct. at 2495. Judicially recognized exceptions to the warrant requirement do not exist in isolation; rather, they are all part of Fourth Amendment jurisprudence, justified because, ordinarily, the circumstances surrounding the search and the nature of the search have been deemed “reasonable.”[...]Here, the First Circuit has not yet spoken on what level of suspicion is required to justify a cell phone or other electronic device search at the border. The First Circuit has, however, acknowledged the significant privacy interests implicated in a cell phone search, explaining that the information on these devices is “the kind of information one would previously have stored in one’s home and that would have been off-limits to officers performing a search incident to arrest.”

[T]he Supreme Court rejected the reasonable suspicion standard when it came to cell phones because it “would prove no practical limit at all when it comes to cell phone searches.” Digital device searches at the border, perhaps even when supported by reasonable suspicion, raise the same concerns.

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