For Second Time in 2 Days, Federal Court Upholds Constitutional Rights at the Border

A federal judge in Massachusetts ruled on Thursday that a lawsuit challenging the government’s growing practice of searching electronic devices at the border without a warrant or any suspicion of wrongdoing can move forward. The case was brought by the ACLU, Electronic Frontier Foundation, and ACLU of Massachusetts on behalf of 11 plaintiffs whose smartphones and laptops were searched without warrants at the U.S. border. 

The government had sought to dismiss the case, arguing that the plaintiffs lacked standing to sue and that the Fourth and First Amendments provide no protections against warrantless and suspicionless searches of electronic devices at the border. To make its case, government lawyers pointed to routine searches of regular luggage, which border authorities are allowed to conduct without a warrant or any individualized suspicion. 

The judge rejected those arguments, finding that the plaintiffs — each of whom has had their phones or laptops searched by U.S. customs officers in the past and were at risk of future searches — could proceed. 

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The ruling rejects the government’s argument that searches of electronic devices should be treated the same as searches of luggage and other physical items. Citing the Supreme Court’s 2014 opinion in Riley v. California, which required police to get a warrant before searching a cell phone of a person placed under arrest, the judge explained that “electronic device searches are, categorically, more intrusive than searches of one’s person or effects. The ability to review travelers’ cell phones allows officers to view ‘nearly every aspect of their lives — from the mundane to the intimate.’” 

The judge continued:

In sum, the Court is not persuaded that Plaintiffs have failed to state a plausible Fourth Amendment claim here. Although Defendants may be correct that the border is different, the Supreme Court and First Circuit have acknowledged that digital searches are different too since they ‘implicate privacy concerns far beyond those implicated’ in a typical container search. In the absence of controlling precedent to the contrary, this Court cannot rule that this Fourth Amendment principle would not extend in some capacity to the border.

The case will now proceed to the next phase, where we look forward to explaining why border agents should have to get a warrant before being allowed to search through our private digital files.

Courts across the country have been addressing how to apply the Fourth Amendment in this context, given skyrocketing numbers of warrantless device searches at the border. Thursday’s decision comes a day after a federal appeals court in Virginia ruled that under the Fourth Amendment, U.S. border authorities cannot search travelers’ cell phones and other electronic devices without individualized suspicion of wrongdoing.

Both decisions join a growing chorus of judges weighing in on the issue in recent years. Given the range of judicial opinions on the matter, travelers enjoy different levels of protection depending on where they live. A nationwide standard that protects their constitutional rights is long overdue.

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There has to be "preemptive" oversight of police officers and officials in the computer age. Many of us that post on this site - a legal First Amendment exercise - are soon after harassed by police or other officials in traffic (18 US Code 241 & 242) for our non-crime and non-wrongdoing. Sometimes we are subjected to unequal enforcement for our legal and proper First Amendment exercise. Officials are violating federal criminal statutes in retaliation for non-crimes and non-wrongdoing.

In other words some, not all, police officers and officials are trolling social media but have no intention of arresting you but do dish out punishment (sometimes without your knowledge). They are dishing out COVERT punishment but it still violates the First Amendment and federal "criminal" statutes like 18 US Code 242. It would be easy for the DOJ prosecutors to police.

Ironically some of the same technology (license plate readers, cell trackers, cell tower dumps) can be also be used by Internal Affairs officers and the DOJ - to police the police. Privacy aside, we are also being robbed of "legal standing" as plaintiffs.


This is a new feeling, a feeling of freedom and democracy and rule of law; the country is giving me hope and insiraption. Maybe just maybe we can fall in love again.


This is a new feeling, a feeling of freedom and democracy and rule of law; the country is giving me hope and insiraption. Maybe just maybe we can fall in love again.


The only reason the Border Patrol exists and why they can search items at the border is to prevent dangerous person and things from entering the country. Hard to argue that my iPhone and the electronic files therein might contain a cannon. Electronic devices and the files on them are the very definition of the 'papers' that the founding fathers wanted to protect from overreaching, overzealous government hands and eyes. If our protections under the 4th don't extend to them then, in the modern world, they might as well chuck the thing.


I have a question for ACLU legal team. I have a green card (for 13+ years) and will be travelling in a few months to India (my home) and after 5 weeks will be coming back. I am VERY worried that TSA will ask for my phone and am feeling strongly about denying them that. Can I do that without being stopped from re-entering US? I feel that the green card legally entitles me to enter US no matter whether I decline to give them my phone for inspection or not...but I wanted to know my legal rights in this regard.


Say, "My attorney has advised me to inform you that my phone contains confidential attorney client priviledge information. I am willing to comply, but not willing to hand over the phone. To hand over the device requires a warrant. However, I can help you, what is it you need to know that is on my phone?" That's pretty much all you can do. If they take it anyway, they are seriously on the hook. With a lawyer friend, have the following: 1) a couple of emails on gmail on your phone, 2) save a screen shot of one of the emails to your photo gallery, and 3) have an SMS from them as well on the phone concerning a legal issue. They will have either seen one or all 3 of them if they search your phone.

Dr. Timothy Leary

I read the book "1984" back in 1977, so none of what happens today surprises me at all.


Thank you ACLU!

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