The court spends a lot of time distinguishing “basic” from “advanced” searches. Excerpt from the 48-page opinion:
Although
governmental interests are paramount at the border, where such non-cursory searches—even
“basic” searches as broadly defined under CBP and ICE policies as well as the “advanced”
searches of Plaintiffs’ electronic devices—amount to non-routine searches, they require reasonable
suspicion that the devices contain contraband.
In January 2018, CBP updated its policy to
distinguish between two different types of searches, “basic” and “advanced,” and to require
reasonable suspicion or a national security concern for any advanced search, but no showing of
cause for a basic search… an advanced search is
defined as “any search in which an officer connects external equipment, through a wired or
wireless connection, to an electronic device, not merely to gain access to the device, but to review,
copy and/or analyze its contents.”
Smart
phones and laptops, devices that Plaintiffs were carrying, can contain information such as
photographs, contact information, emails and text messages, as well as information such as
prescriptions, employment information, travel history and internet browsing history… Even under the border search exception, it is the
privacy interests implicated by unfettered access to such a trove of personal information that must
be balanced against the promotion of paramount governmental interests at the border
Basic searches, defined only
as any search of an electronic device that is not an advanced search, can access content from space
physically resident on a device using the devices’ native operating system. That
is, even a basic search alone may reveal a wealth of personal information. Electronic devices
carried by travelers, including smartphones and laptops, can contain a very large volume of
information, including “sensitive information.” Such devices can contain,
for some examples, prescription information, information about employment, travel history and
browsing history. Such information can be accessed during not just the forensic
searches under the CBP and ICE policies, but also under a basic search…
Technological self-help has a place here. Turn off your phone at the border.
As for the law, there are bad guys who want to enter these United States (and haven’t realized that they should pose as a “refugee” or “migrant” so leftist groups will help them enter illegally from Mexico). DHS should be searching their electronic devices.
But some searches go too far. It is unreasonable to expect normal American citizens to wait 45 minutes while a CBP agent peruses the entire contents of their phone in a “basic” search, even if the data are not extracted in an “advanced” search for later forensic analysis.
CBP can use even “basic” search data as evidence of crimes unrelated to border crossing, and if there’s one thing that’s become clear in the latter days of the American empire, there are too many “federal crimes” on the books. And parallel construction remains a thing.
The court spends a lot of time distinguishing “basic” from “advanced” searches. Excerpt from the 48-page opinion:
Technological self-help has a place here. Turn off your phone at the border.
As for the law, there are bad guys who want to enter these United States (and haven’t realized that they should pose as a “refugee” or “migrant” so leftist groups will help them enter illegally from Mexico). DHS should be searching their electronic devices.
But some searches go too far. It is unreasonable to expect normal American citizens to wait 45 minutes while a CBP agent peruses the entire contents of their phone in a “basic” search, even if the data are not extracted in an “advanced” search for later forensic analysis.
CBP can use even “basic” search data as evidence of crimes unrelated to border crossing, and if there’s one thing that’s become clear in the latter days of the American empire, there are too many “federal crimes” on the books. And parallel construction remains a thing.