Alasaad et al v. Duke et al
Judge Denise J. Casper: ORDER entered. MEMORANDUM AND ORDER - The Court DENIES Defendants' motion to dismiss, D. 14.(Hourihan, Lisa)
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UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
GHASSAN ALASAAD, NADIA ALASAAD,
SUHAIB ALLABABIDI, SIDD
BIKKANNAVAR, JÉRÉMIE DUPIN,
AARON GACH, ISMAIL ABDEL-RASOUL
a/k/a ISMA’IL KUSHKUSH, DIANE MAYE, )
ZAINAB MERCHANT, MOHAMMED
AKRAM SHIBLY and MATTHEW WRIGHT, )
KIRSTJEN NIELSEN, Secretary of the U.S.
Department of Homeland Security, in her
official capacity; KEVIN McALEENAN,
Acting Commissioner of U.S. Customs and
Border Protection, in his official capacity; and )
THOMAS HOMAN, Acting Director of U.S.
Immigration and Customs Enforcement, in his )
MEMORANDUM AND ORDER
May 9, 2018
Plaintiffs Ghassan Alasaad, Nadia Alasaad, Suhaib Allababidi (“Allababidi”), Sidd
Bikkannavar (“Bikkannavar”), Jérémie Dupin (“Dupin”), Aaron Gach (“Gach”), Ismail AbdelRasoul a/k/a Isma’il Kushkush (“Kushkush”), Diane Maye (“Maye”), Zainab Merchant
(“Merchant”), Mohammed Akram Shibly (“Shibly”) and Matthew Wright (“Wright”)
Case 1:17-cv-11730-DJC Document 34 Filed 05/09/18 Page 2 of 52
(collectively, “Plaintiffs”) bring this suit against the following persons in their official capacities:
Kirstjen Nielsen (“Nielsen”), Secretary of the U.S. Department of Homeland Security (“DHS”),1
Kevin McAleenan (“McAleenan”), Acting Commissioner of U.S. Customs and Border Protection
(“CBP”), and Thomas Homan (“Homan”), Acting Director of U.S. Immigration and Customs
Enforcement (“ICE”) (collectively, “Defendants”). D. 7 ¶¶ 14-26. Plaintiffs, ten U.S. citizens and
one lawful permanent resident, allege that Defendants’ conduct—searching Plaintiffs’ electronic
devices at ports of entry to the United States and, in some instances, confiscating the electronic
devices being searched, pursuant to CBP and ICE policies—violates the Fourth Amendment
(Counts I and III) and First Amendment (Count II) of the U.S. Constitution. D. 7 ¶¶ 1-10, 168-73.
They seek declaratory and injunctive relief. D. 7 at 40-42. Defendants have now moved to
dismiss. D. 14. For the reasons stated below, the Court DENIES Defendants’ motion to dismiss.
Standard of Review
To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a complaint must include
“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007); García-Catalán v. United States, 734 F.3d 100, 103 (1st Cir. 2013). The
Court “must assume the truth of all well-plead[ed] facts and give the plaintiff the benefit of all
reasonable inferences therefrom.” Ruiz v. Bally Total Fitness Holding Corp., 496 F.3d 1, 5 (1st
Cir. 2007). Plaintiffs “need not demonstrate that [they are] likely to prevail” at this stage, GarcíaCatalán, 734 F.3d at 102, but they must show that the combined allegations state “a plausible, not
a merely conceivable, case for relief.” Sepúlveda-Villarini v. Dep’t of Educ. of P.R., 628 F.3d 25,
29 (1st Cir. 2010).
The initial suit was filed against Elaine Duke, then Acting Secretary of DHS, but Nielsen has
been substituted as Secretary of Homeland Security pursuant to Fed. R. Civ. P. 25(d).
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Unless otherwise noted, the following facts are drawn from Plaintiffs’ amended complaint
and accepted as true for the purposes of considering the motion to dismiss. Plaintiffs are
individuals whose electronic devices have been searched by federal officers at U.S. ports of entry
on at least one occasion, and who “regularly travel outside the country with their electronic devices
and intend to continue doing so.” D. 7 ¶ 2. Defendants are the heads of DHS and two of its units,
CBP and ICE. D. 7 ¶ 3.
In the United States, ninety-five percent of adults own a cell phone, seventy-seven percent
own a smart phone and over fifty percent own a tablet computer. D. 7 ¶ 27. “Electronic devices
are often essential to people’s work,” as well as “communication . . . navigation, shopping,
banking, entertainment, news, and photography, among other functions.” D. 7 ¶¶ 36, 27. “Laptops
sold in 2017 can store up to two terabytes” of data, tablet computers can hold up to a terabyte and
“smartphones can store hundreds of gigabytes of data.” D. 7 ¶ 30. This storage capacity “can be
the equivalent of hours of video files, thousands of pictures, or millions of pages of text.” Id.
Electronic devices like these may also be used to access cloud storage—“data located on remote
servers”—as well as email and social media applications. D. 7 ¶¶ 30, 32. Data stored on electronic
devices includes “personal, expressive, and associational information” like communications,
location history, contact lists, internet browsing history, photos, calendars and notes. D. 7 ¶ 31.
Additionally, electronic devices store “historical location information, so-called ‘deleted’ items
that actually remain in digital storage,” “metadata about digital files” and “time stamps or GPS
coordinates created automatically by software on the device.” D. 7 ¶ 33.
According to public CBP data, “CBP conducted 14,993 electronic device searches in the
first half of fiscal year 2017,” putting CBP “on track to conduct approximately 30,000 searches
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this fiscal year, compared to just 8,503 searches in fiscal year 2015.” D. 7 ¶ 38.2 Searches
generally come in two forms: (1) “manual” searches, during which “officers review the contents
of the device by interacting with it as an ordinary user would, through its keyboard, mouse, or
touchscreen interfaces”; and (2) “forensic” searches, during which officers “use sophisticated
tools, such as software programs or specialized equipment, to evaluate information contained on a
device,” typically starting by making a copy of the device’s data. D. 7 ¶¶ 39, 40, 43. Forensic
searches “can capture all active files, deleted files, files in allocated and unallocated storage space,
metadata . . . password-protected or encrypted data, and log-in credentials and keys for cloud
accounts.” D. 7 ¶ 43. On occasion, officers confiscate travelers’ devices for prolonged periods.
D. 7 ¶¶ 50-56.
CBP and ICE have policies that authorize and guide agents’ search of travelers’ electronic
devices at border locations. D. 7 ¶¶ 8, 57-61. Both units’ policies permit searches of electronic
devices without a showing of probable cause or issuance of a search warrant. D. 7 ¶¶ 9, 57.
The Search Policies
The CBP and ICE electronic device search policies detailed below are matters of public
record, published by DHS and available to the public and, accordingly, may be considered by the
Court for the purposes of this motion. See Alt. Energy, Inc. v. St. Paul Fire & Marine Ins. Co, 267
F.3d 30, 33 (1st Cir. 2001). Moreover, neither party challenges that the Court may take judicial
See CBP Releases Statistics on Electronic Device Searches, U.S. Customs and Border Protection
(Apr. 11, 2017), http://www.cbp.gov/newsroom/national-media-reliease/cbp-releases-statisticselectronic-device-searches-0. Indeed, according to CBP’s reported statistics postdating Plaintiffs’
amended complaint, CBP’s electronic device search rate remained consistent in the second half of
fiscal year 2017, which ran until September 30, 2017, and the number of travelers whose electronic
devices were searched totaled 30,200. D. 18-2 at 5 n.7; CBP Releases Updated Border Search of
Electronic Device Directive and FY17 Statistics, U.S. Customs and Border Protection (Jan. 5,
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notice of these policies, but rather, request that the Court does so. See D. 18; D. 19 at 13 n.1. The
Court, therefore, takes judicial notice of the following policies: ICE’s directive number 7-6.1,
issued August 18, 2009, titled “Border Searches of Electronic Devices” (“ICE Policy”); CBP
directive number 3340-049, issued August 20, 2009, titled “Border Searches of Electronic Devices
Containing Information” (“2009 CBP Policy”);3 and CBP’s directive number 3340-049A, issued
January 4, 2018, superseding the 2009 CBP Policy, titled “Border Search of Electronic Devices”
(“2018 CBP Policy”), D. 18-1.
The ICE Policy
The ICE Policy establishes procedures “to search, detain, seize, retain, and share
information contained in electronic devices possessed by individuals at the border” and “applies
to . . . all persons arriving in, departing from, or transitioning through the United States.” ICE Pol.
¶ 1.1. It states that “[a]ll electronic devices crossing U.S. borders are subject to border search,”
defining “electronic devices” as “[a]ny item that may contain information, such as computers,
disks, drives, tapes, mobile phones and other communication devices, cameras, music players, and
any other electronic or digital devices.” ICE Pol. ¶¶ 8.6.1, 5.2.
Under the ICE Policy, agents are authorized to search electronic devices “with or without
individualized suspicion.” D. 7 ¶ 58(b); ICE Pol. ¶ 6.1. “To the extent practicable, border searches
should be conducted in the presence of, or with the knowledge of, the traveler.” ICE Pol. ¶ 8.1.2.
The traveler’s consent, however, is not needed for search. ICE Pol. ¶ 8.1.3.
As of this opinion’s publication, the 2009 ICE Policy is available at the following online address:
https://www.dhs.gov/xlibrary/assets/ice_border_search_electronic_devices.pdf (“ICE Pol.”). The
2009 CBP Policy is available at https://www.dhs.gov/xlibrary/assets/cbp_directive_3340-049.pdf
(“2009 CBP Pol.”).
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No individualized suspicion is required for officers to confiscate devices or “copies of
information therefrom” for “further review” on- or off-site. ICE Pol. ¶¶ 6.1, 8.1.4; see D. 7 ¶ 61(b).
Additionally, “[a]ssistance to complete a border search may be sought from other Federal agencies
and non-Federal entities, on a case by case basis, as appropriate,” for technical or subject matter
assistance. ICE Pol. ¶¶ 6.1, 8.1.4, 8.4. ICE agents “may create and transmit copies of information”
when seeking assistance. ICE Pol. ¶ 8.4.4. Such assistance “is to be accomplished within a
reasonable period of time.” ICE Pol. ¶ 8.4.5.a. In general, once ICE confiscates a device, ICE
may retain it for “a reasonable time given the facts and circumstances of the particular search,”
generally thirty days, and supervisors may extend this period under “circumstances . . . that warrant
more time.” ICE Pol. ¶ 8.3.1; D. 7 ¶ 61(c).
Regarding written records of searches, “[n]othing in this policy limits the authority of
Special Agents to make written notes or reports or to document impressions relating to a border
encounter in ICE’s paper or electronic recordkeeping systems.” ICE Pol. ¶ 6.3. If ICE confiscates
a device, agents must “provide the traveler with a copy of the applicable chain of custody form or
other appropriate documentation.” ICE Pol. ¶ 8.2.4. ICE agents may seize and retain devices or
copies of information contained therein if they determine there is probable cause of unlawful
activity or, to “the extent authorized by law,” information “relevant to immigration, customs, and
other law enforcement matters.” ICE Pol. ¶¶ 8.5.1.a-b. Copies may be shared with federal, state,
local and foreign law enforcement agencies. ICE Pol. ¶ 8.5.1.c.
The ICE Policy states that copies of information “determined to be of no relevance to ICE
will be destroyed . . . . within seven business days after conclusion of the border search unless
circumstances require additional time” and “no later than 21 calendar days after conclusion of the
border search.” ICE Pol. ¶ 8.5.1.e. Assisting agencies must return devices and data to ICE or
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“certify to ICE that any copies in its possession have been destroyed” unless they have the
independent legal authority to retain copies. ICE Pol. ¶ 8.5.2. Non-federal entities must return all
copies of information “as expeditiously as possible.” ICE Pol. ¶ 8.5.3.
The CBP Policies
Given that Plaintiffs seek injunctive, prospective relief, the Court relies primarily upon the
2018 CBP Policy, as it supersedes the 2009 CBP Policy. See D. 18-1 at 2. For the purposes of
any relief sought to address past harms, however, the Court briefly outlines the 2009 CBP Policy
below to the extent it differs from the 2018 CBP Policy.
The 2018 CBP Policy
The 2018 CBP Policy applies to searches performed by CBP officers, not ICE or Homeland
Security Investigations (“HSI”) agents. D. 18-1 ¶ 2.7. It defines “electronic device” as “[a]ny
device that may contain information in an electronic or digital form, such as computers, tablets,
disks, drives, tapes, mobile phones and other communication devices, cameras, music and other
media players.” D. 18-1 ¶ 3.2.
The 2018 CBP Policy divides electronic device searches into two categories: the basic
search and the advanced search. D. 18-1 ¶ 5.1. An “advanced search” is defined as “any search
in which an Officer connects external equipment . . . to an electronic device not merely to gain
access to the device, but to review, copy, and/or analyze its contents.” D. 18-1 ¶ 5.1.4. It requires
“reasonable suspicion of activity in violation of the laws enforced or administered by CBP” or a
“national security concern,” as well as “supervisory approval,” to justify the search. Id. A
supervisor must also be present during the search. D. 18-1 ¶ 5.1.5. A “basic search,” by contrast,
is “[a]ny border search of an electronic device that is not an advanced search.” D. 18-1 ¶ 5.1.3.
An officer may conduct such a search “with or without suspicion.” Id.
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All electronic device searches are documented. D. 18-1 ¶ 5.1.5. Additionally, all searches
“should be conducted in the presence of the individual whose information is being examined unless
there are national security, law enforcement, officer safety, or other operational considerations that
make it inappropriate to permit the individual to remain present.” D. 18-1 ¶ 5.1.6. Permission to
remain present, however, “does not necessarily mean that the individual shall observe the search
The 2018 CBP Policy authorizes “examination of only the information that is resident upon
the device and accessible through the device’s operating system or through other software, tools,
D. 18-1 ¶ 5.1.2.
The policy prohibits an officer’s intentional search of
information stored remotely, directing officers to request that travelers “disable connectivity to
any network” prior to search. Id. According to the policy, “[t]ravelers are obligated to present
electronic devices and the information contained therein in a condition that allows inspection of
the device and its contents,” and “[p]asscodes or other means of access may be requested and
retained as needed to facilitate” the search. D. 18-1 ¶ 5.3.1. If an officer cannot complete an
inspection because of passcode or encryption protection, the officer may “detain the device
pending a determination as to its admissibility, exclusion, or other disposition” or “seek technical
assistance” or “use external equipment” to access the device. D. 18-1 ¶¶ 5.3.3-4.
The 2018 CBP Policy permits officers to “detain electronic devices, or copies of
information contained therein, for a brief, reasonable period of time,” which “ordinarily should
not exceed five (5) days,” on- or off-site, but may be extended with supervisor approval. D. 18-1
¶ 5.4.1. If a device is detained, the officer must issue a custody receipt to the traveler prior to the
traveler’s departure, D. 18-1 ¶ 126.96.36.199, and all transfers of custody must be recorded, D. 18-1 ¶¶
188.8.131.52, 5.6.2. CBP officers may make copies of electronic devices when seeking technical
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assistance—e.g., device access or translation assistance—or subject matter assistance “with
reasonable suspicion or national security concern.” D. 18-1 ¶¶ 184.108.40.206-2. Unless assistance is
sought within CBP or from ICE, requests for assistance require supervisory approval and must be
documented. D. 18-1 ¶ 220.127.116.11.
If after a review of the electronic device an officer determines there is probable cause to
believe it contains evidence of illegal activity, officers “may seize and retain” the device. D. 181 ¶ 18.104.22.168. “Without probable cause . . . CBP may retain only information relating to immigration,
customs, and other enforcement matters if such retention is consistent with the applicable system
of records notice.” D. 18-1 ¶ 22.214.171.124. The 2018 CBP Policy does not limit CBP’s authority to
share information from these devices, “retained in accordance with this Directive, with federal,
state, local, and foreign law enforcement agencies.” D. 18-1 ¶ 126.96.36.199.
If the review does not give rise to “probable cause to seize the device or the information
contained therein, any copies of the information held by CBP must be destroyed, and any electronic
device must be returned” within seven days of such determination, barring special circumstances.
D. 18-1 ¶ 188.8.131.52. Additionally, “[p]asscodes and other means of access obtained during the course
of a border inspection . . . will be deleted or destroyed when no longer needed to facilitate the
search.” D. 18-1 ¶ 5.3.2. To the extent any assistance was provided outside of CBP or ICE, the
assisting agency or entity “should destroy all copies of the information conveyed.” D. 18-1
¶ 184.108.40.206. “The destruction shall be noted in appropriate CBP systems.” D. 18-1 ¶ 220.127.116.11.
The 2009 CBP Policy
Under the 2009 CBP Policy, which was in force at the time of Plaintiffs’ alleged border
device searches, certain policies differed. The 2009 CBP Policy did not distinguish between a
basic and advanced search and no level of suspicion was required for either. D. 7 ¶ 61(a); 2009
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CBP Pol. ¶ 5.1.2. Likewise, the earlier policy permitted confiscation of electronic devices for onor off-site search without any level of suspicion. D. 7 ¶ 61(a); 2009 CBP Pol. ¶ 5.3.1.
Ghassan and Nadia Alasaad are U.S. citizens and Massachusetts residents whose two
smartphones were searched and retained when they were crossing the border in July 2017 from
Canada to Vermont. D. 7 ¶¶ 14, 62, 70. They were traveling with their eleven-year-old daughter,
who was “ill and had a high fever.” D. 7 ¶ 63. When asked, a CBP supervisor told them they were
being detained and searched because he “simply felt like ordering a secondary inspection.” D. 7
¶ 66. In a secondary inspection room, a CBP officer manually searched Ghassan’s smartphone.
D. 7 ¶ 65. Several hours later, a CBP officer ordered Nadia to provide the password to her locked
phone. D. 7 ¶ 67. After the officer told them that if Nadia did not disclose her password, the
“phone would be confiscated,” she wrote down the password. D. 7 ¶ 68. Nadia “wears a headscarf
in public in accordance with her religious beliefs” and told the officer that a male officer could not
search her phone because it contained photos of her without a headscarf and the officer responded
“that it would take two hours for a female officer to arrive, and then more time to search the
phone.” D. 7 ¶¶ 67, 70. After approximately six hours of detention, the Alasaads departed without
their two phones. D. 7 ¶¶ 70-71. The phones were returned fifteen days later. D. 7 ¶ 72. CBP’s
search and seizure of Ghassan’s phone “damaged its functionality.” Id.
One month later, the Alasaads’ daughter’s locked smartphone was searched when Nadia
and her daughter arrived in New York from Morocco “where they had been visiting family.” D. 7
¶¶ 73, 75. CBP officers directed the two to a secondary inspection area. D. 7 ¶ 74. There, Nadia
informed the officers that she had lost her phone, but when officers searched Nadia’s purse, they
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found her daughter’s smartphone. Id. The officers directed the Alasaads’ daughter to write down
her password, and after she did, an officer “took the phone to another room for approximately 15
minutes.” D. 7 ¶ 75.
In January 2017, Allababidi had his devices searched and confiscated by CBP officers
when returning from a business trip on a flight from Dubai to Dallas. D. 7 ¶¶ 77-80. A U.S. citizen
who lives in Texas and owns and operates a business that sells security technology, Allababidi
carried a locked smartphone “that he used regularly for both personal and business matters” in the
U.S. and an unlocked smartphone that “enabled him to communicate easily while overseas.” D. 7
¶¶ 15, 77. A CBP officer directed Allababidi to a secondary inspection area, where he observed
an officer “seize and manually search his unlocked phone for at least 20 minutes.” D. 7 ¶ 78. The
officer ordered Allababidi to unlock his other phone, and when he declined, officers confiscated
both smartphones. D. 7 ¶ 79. One phone was returned two months later, and the other had not
been returned at the time the amended complaint was filed. D. 7 ¶ 80.
Bikkannavar, a U.S. citizen residing in California, returned from a vacation in Chile with
a locked smartphone owned by his employer, NASA’s Jet Propulsion Laboratory, which he used
for work and personal matters. D. 7 ¶¶ 16, 81. CBP officers escorted Bikkannavar to a secondary
inspection area, where an officer gave him a CBP form that Bikkannavar understood to “mean that
CBP was asserting a legal prerogative to search the contents of his phone.” D. 7 ¶ 82. After
initially declining to do so, Bikkannavar disclosed his password, which an officer wrote down and
took, with Bikkannavar’s phone, to another room. D. 7 ¶¶ 82-83. The officer returned about thirty
minutes later, informed Bikkannavar that officers had used “algorithms” to search its contents, and
returned the phone. D. 7 ¶ 84.
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Dupin, a journalist, citizen of Haiti and legal permanent resident of the U.S. living in
Massachusetts, was subject to two device searches in December 2016. D. 7 ¶¶ 17, 86-97. In the
first, Dupin connected in Miami, Florida, en route from Port-au-Prince, Haiti to Montreal, Quebec,
where he was visiting his daughter to take her by bus to New York City. D. 7 ¶ 86. A CBP officer
escorted Dupin to a secondary inspection area in Miami, where he waited for over two hours before
being escorted to a smaller room for questioning “about his work as a journalist, including the
names of the organizations and specific individuals within those organizations for whom he had
worked” by three CBP officers. D. 7 ¶ 87. During questioning, officers seized Dupin’s locked
smartphone and ordered him to provide a password, which he did. D. 7 ¶ 88. An officer searched
Dupin’s phone for “about two hours” during which, at certain points, the officer took Dupin’s
phone “into another room,” returning “periodically to ask Mr. Dupin questions about the contents
of the phone.” D. 7 ¶ 90. The officers then returned the phone and permitted him to leave. D. 7
The next day, December 23, 2016, Dupin and his seven-year-old daughter traveled by bus
from Montreal to New York. D. 7 ¶ 92. At the customs checkpoint “near midnight,” a CBP officer
directed them to a secondary inspection area, where officers asked “some of the same questions
officers had asked in Miami” as his daughter was “[a]sleep in his lap.” D. 7 ¶¶ 93, 95(d). The
officers seized his phone, obtained his password, and took the “phone into another room for about
four hours,” again returning periodically with specific questions about the phone’s contents. D. 7
¶¶ 94, 96. “After approximately seven hours of detention,” on the morning of December 24, 2016,
officers returned the phone to Dupin and told him that he and his daughter could leave. D. 7 ¶ 97.
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Gach, an artist and U.S. citizen who lives in California, had his locked smartphone searched
on arrival in San Francisco from Belgium, “where he had participated in an art exhibition
displaying works that could be considered critical of the government.” D. 7 ¶ 18, 98-104. He was
questioned “about his work as an artist and the exhibition in Belgium” in a secondary inspection
area, and, when asked for his phone, told the officers that he did not want the officers to search it.
D. 7 ¶ 99. After “[t]he officers told [him]that his phone would be held for an indeterminate amount
of time if he did not disclose his password,” Gach entered his password and handed the officers
his unlocked phone. D. 7 ¶ 100. The officers searched Gach’s phone “behind a dividing wall for
approximately 10 minutes” and then returned the phone to him and permitted him to leave. D. 7
Kushkush—a U.S. citizen and freelance journalist from Virginia—had his devices
searched on three occasions between January 2016 and July 2017. D. 7 ¶¶ 19, 105-19. First, in
New York, Kushkush, while returning from conducting research for a master’s thesis in
Stockholm, Sweden, was questioned by CBP officers, who also seized his locked laptop and two
unlocked cell phones. D. 7 ¶¶ 105-07. They searched the devices out of his sight for around
twenty minutes before returning them to him. D. 7 ¶ 107.
In January 2017, Kushkush flew to Washington, D.C. from Israel, where he had completed
an internship with the Associated Press, carrying a “locked smartphone that he used for both
professional and personal matters,” the same locked laptop and unlocked devices including a
digital camera, voice recorder and flash drives. D. 7 ¶ 108. In a secondary inspection area, CBP
officers questioned him “about his reporting activities,” asked for his social media identifiers and
email address, and instructed Kushkush to unlock his phone. D. 7 ¶¶ 109-10. Kushkush
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“reluctantly complied” and observed the officer manually search the phone. D. 7 ¶¶ 110-12.
Officers took the other devices “into another room for approximately 20 minutes.” D. 7 ¶ 112.
The officers returned the devices and he was permitted to leave. D. 7 ¶ 113.
In July 2017, Kushkush returned to the U.S. on a bus from Montreal with fellow students
in a language program, and at the border, he was directed to secondary inspection. D. 7 ¶¶ 11415. Kushkush unlocked his phone for the CBP officer, “stat[ing] that he was doing so against his
will,” and the officer wrote down Kushkush’s password and took the phone out of Kushkush’s
sight “for at least one hour.” D. 7 ¶¶ 115-17. Officers also questioned Kushkush “about his work
as a journalist.” D. 7 ¶ 118. After “approximately three and a half hours,” CBP officers returned
the phone and permitted Kushkush to leave. D. 7 ¶ 119.
Maye, a U.S. citizen from Florida, assistant professor of homeland security at EmbryRiddle Aeronautical University and former U.S. Air Force captain, flew from vacation in Oslo,
Norway, to Miami with a locked laptop and smartphone. D. 7 ¶¶ 20, 120. In a secondary
inspection area with two CBP officers, Maye unlocked her devices after being ordered to do so.
D. 7 ¶¶ 121-22. Maye observed an officer manually search her unlocked laptop. D. 7 ¶ 123. An
officer also “seized” her “unlocked phone for approximately two hours.” D. 7 ¶ 124.
Merchant is a U.S. citizen, founder and editor of a media organization that publishes online
news content and a graduate student in international security and journalism at Harvard University.
D. 7 ¶¶ 21, 125. In March 2017, after visiting her uncle in Toronto, Ontario, Merchant was directed
to a secondary inspection area at a U.S. customs preclearance station in the Toronto airport prior
to her flight home to Orlando. D. 7 ¶¶ 126-27. After CBP officers asked for Merchant’s
smartphone, Merchant—who “wears a headscarf in public in accordance with her religious beliefs”
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and whose phone contains photos of her without her headscarf—told CBP officers she would give
them the phone but not unlock it. D. 7 ¶ 129. CBP officers repeatedly told her she “could choose
to unlock the phone, or have it seized indefinitely.” D. 7 ¶ 129-30. Merchant told the officers she
was traveling alone and needed the phone to communicate and for her work. D. 7 ¶ 130. “In tears,
Ms. Merchant unlocked her phone” and “provided the password to unlock her laptop.” D. 7 ¶ 131.
CBP officers searched Merchant’s laptop and phone out of her sight for approximately one and a
half hours. D. 7 ¶ 135. Officers questioned her about her religious affiliation and certain of her
blog posts. D. 7 ¶ 133. “When the CBP officers returned the phone to Ms. Merchant and she
unlocked it, the Facebook application was open to the ‘friends’ page. It had not been open to that
page when she had given up the phone.” D. 7 ¶ 135.
Shibly, a U.S. citizen and filmmaker from Buffalo, New York, had his devices searched on
two occasions in January 2017. D. 7 ¶¶ 22, 136-46. First, returning home by car from Canada,
Shibly was directed to a secondary inspection area at the border in New York, and told to “fill out
a form with information that included . . . his phone’s password.” D. 7 ¶¶ 136-37. An officer then
“ordered” him to provide the password, saying that “if he had nothing to hide, then he should
unlock his phone,” and Shibly “disengaged” the lock on the phone. D. 7 ¶¶ 137-38. Shibly also
provided CBP officers with his social media identifiers. D. 7 ¶ 141. Shibly’s phone was taken out
of his sight for an hour before it was returned and he was permitted to leave. D. 7 ¶¶ 140, 142.
Three days later, Shibly was stopped on the same bridge and directed to a secondary inspection
area. D. 7 ¶¶ 143-44. When he declined to hand over his phone, “[t]hree CBP officers . . . used
physical force to seize his phone.” D. 7 ¶ 145. An officer took the phone—which was still
unlocked from the first search—to a different room. D. 7 ¶¶ 143, 146.
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Wright, a computer programmer from Colorado, was brought to an inspection area in the
Denver airport after returning home from a trip in Southeast Asia. D. 7 ¶¶ 23, 147-48. A CBP
officer ordered Wright to unlock his laptop and when Wright declined, CBP officers confiscated
the laptop as well as his locked phone and his camera. D. 7 ¶ 148. According to CBP documents
disclosed to Wright in a Freedom of Information Act and Privacy Act (“FOIA”) request, CBP
confiscated Wright’s devices pursuant to instructions from ICE’s Homeland Security
Investigations (“HSI”) division, which sought “further forensic review.” D. 7 ¶ 149. These records
demonstrate that HSI “attempted to image” Wright’s laptop and a CBP forensic scientist extracted
data from Wright’s phone and camera, which he stored on three thumb drives he sent to other CBP
officers. D. 7 ¶ 152. Wright received his devices fifty-six days later. D. 7 ¶ 154. CBP
documentation from Wright’s FOIA request does not reflect destruction of the information
extracted from Wright’s devices. D. 7 ¶ 155c.
Plaintiffs instituted this action on September 13, 2017. D. 1; D. 7. Defendants now move
to dismiss. D. 14. On April 23, 2018, the Court heard the parties on the pending motion and took
the matter under advisement. D. 33.
Defendants argue that Plaintiffs do not have standing to bring this suit, and that even if
they do, they have failed to state a claim on the merits. D. 14. The Court addresses standing as a
threshold inquiry because “[i]f a party lacks standing to bring a matter before the court, the court
lacks jurisdiction to decide the merits of the underlying case.” United States v. AVX Corp., 962
F.2d 108, 113 (1st Cir. 1992).
Case 1:17-cv-11730-DJC Document 34 Filed 05/09/18 Page 17 of 52
“Standing to sue is a doctrine rooted in the traditional understanding of a case or
controversy” within Article III of the U.S. Constitution, Spokeo, Inc. v. Robins, ___ U.S. ___, 136
S. Ct. 1540, 1547 (2016), and serves to “identify those disputes which are appropriately resolved
through the judicial process,” Whitmore v. Arkansas, 495 U.S. 149, 155 (1990). “The law of
Article III standing, which is built on separation of powers principles, serves to prevent the judicial
process from being used to usurp the powers of the political branches.” Clapper v. Amnesty Int’l
USA, 568 U.S. 398, 408 (2013). To establish Article III standing, Plaintiffs must demonstrate that
they “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the
defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, 136 S.
Ct. at 1547; see Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992). Plaintiffs bear the burden
of establishing standing, but “the same pleading standards apply both to standing determinations
and Rule 12(b)(6) determinations.” Hochendoner v. Genzyme Corp., 823 F.3d 724, 734 (1st Cir.
2016); see Lujan, 504 U.S. at 561; Reddy v. Foster, 845 F.3d 493, 497 (1st Cir. 2017).
“The ‘[f]irst and foremost’ concern in standing analysis is the requirement that the plaintiff
establish an injury in fact . . . .” Reddy, 845 F.3d at 500 (quoting Spokeo, 136 S. Ct. at 1547)
(alteration in original). To do so, “a plaintiff must show that he or she suffered ‘an invasion of a
legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not
conjectural or hypothetical.’” Spokeo, 136 S. Ct. at 1548 (quoting Lujan, 504 U.S. at 560). “[T]he
imminence concept, while admittedly far reaching, is bounded by its Article III purpose: ‘to ensure
that the alleged injury is not too speculative.’” Berner v. Delahanty, 129 F.3d 20, 24 (1st Cir.
1997) (quoting Lujan, 504 U.S. at 564 n.2). Where, as here, Plaintiffs seek injunctive relief, they
must plausibly allege that “the threatened injury is ‘certainly impending’ or there is a ‘substantial
Case 1:17-cv-11730-DJC Document 34 Filed 05/09/18 Page 18 of 52
risk that the harm will occur.’” Susan B. Anthony List v. Driehaus (“SBA List”), ___ U.S. ___,
134 S. Ct. 2334, 2341 (2014) (quoting Clapper, 568 U.S. at 414, 414 n.5); see Reddy, 845 F.3d at
500. Because we are “[a]t the pleading stage, general factual allegations of injury resulting from
the defendant[s’] conduct may suffice.” Lujan, 504 U.S. at 561; see Hochendoner, 823 F.3d at
“[S]tanding is not dispensed in gross . . . .” Lewis v. Casey, 518 U.S. 343, 358 n.6 (1996).
Rather, the standing inquiry is a “plaintiff-by-plaintiff and claim-by-claim analysis.”
Hochendoner, 823 F.3d at 733. The Court must, therefore, determine “whether each particular
plaintiff is entitled to have a federal court adjudicate each particular claim that he asserts.” Id.
(quoting Pagán v. Calderón, 448 F.3d 16, 26 (1st Cir. 2006)). Defendants argue that Plaintiffs do
not have standing to seek declaratory or injunctive relief for any alleged Fourth or First
Amendment violations and that they also lack standing to seek expungement.4 D. 15 at 15-22.
The Court addresses each claim in turn.
Standing to Seek Injunctive or Declaratory Relief
Plaintiffs allege that they “face a likelihood of future injury caused by the challenged
policies and practices . . . related to searching and seizing electronic devices at the border.” D. 7
¶ 156. Although each Plaintiff has individual reasons for doing so, “[a]ll Plaintiffs have traveled
across the U.S. border with their electronic devices multiple times” and “will continue to do so in
the future.” Id. At the border, “they will be subject to CBP’s and ICE’s policies and practices . .
. . namely, search or seizure of their devices absent a warrant, probable cause or reasonable
Defendants also argue that allegations of potentially chilled speech fail to establish standing,
D. 15 at 21-22, but Plaintiffs respond that they do not rely upon “the chill of their First Amendment
rights” as their alleged injury to support standing here, D. 19 at 16 n.3. The Court will not,
therefore, address that theory further.
Case 1:17-cv-11730-DJC Document 34 Filed 05/09/18 Page 19 of 52
suspicion,” and Plaintiffs cannot avoid this harm without “forego[ing] international travel or 
travel[ing] without any electronic devices, which would cause great hardship.” Id. On this basis,
Plaintiffs seek to enjoin Defendants from “searching electronic devices absent a warrant supported
by probable cause that the devices contain” evidence of illegal activity and from “confiscating
travelers’ electronic devices, to effectuate searches of those devices after travelers leave the border,
absent probable cause.” D. 7 at 41-42.
Defendants argue that Plaintiffs’ allegations fail to allege plausibly any “certainly
impending” injury, Clapper, 568 U.S. at 414. D. 15 at 17. As the First Circuit explained recently,
however, the Supreme Court in SBA List—which “both postdated and cited Clapper”—
established a “disjunctive framing of the test: injury is imminent if it is certainly impending or if
there is a substantial risk that harm will occur.” Reddy, 845 F.3d at 500 (emphasis in original).
Thus, even if Plaintiffs do not allege an injury that is “certainly impending,” they may still establish
standing by plausibly alleging a substantial risk that harm will occur. See id.; SBA List, 134 S.
Ct. at 2341.
Defendants contend that Plaintiffs have also failed to satisfy the “substantial risk” inquiry.
D. 15 at 17-19. Plaintiffs allege that CBP data demonstrates that it is on track to conduct
approximately 30,000 searches this fiscal year. D. 7 ¶ 38. 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. D. 15 at 17-18. Defendants argue that this future search
probability—which they characterize as a “slight chance” of search—is not sufficient to establish
standing here. D. 15 at 18.
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
Case 1:17-cv-11730-DJC Document 34 Filed 05/09/18 Page 20 of 52
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. D. 7 ¶ 38. 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. SBA
List, 134 S. Ct. at 2345. Against this backdrop, 30,000 searches per year is not a “rare occurrence,”
even if it makes up a small percentage of total travelers. Moreover, “[e]ven a small probability of
injury is sufficient to create a case or controversy—to take a suit out of the category of
hypothetical—provided of course that the relief sought would, if granted, reduce the probability.”
Massachusetts v. EPA, 549 U.S. 497, 525 n.23 (2007) (quoting Village of Elk Grove Village v.
Evans, 997 F.2d 328, 329 (7th Cir. 1993)); see NRDC v. EPA, 464 F.3d 1, 7 (D.C. Cir. 2006)
(holding 1 in 200,000 odds of developing skin cancer sufficient to support standing). Additionally,
as the Court explains below, that four Plaintiffs here have been subjected to multiple searches, D.
7 ¶¶ 62-76, 86-97, 105-19, 136-46, suggests that the risk of future search is higher for these
plaintiffs than the general population.
Defendants also argue that Plaintiffs’ allegations of future harm are impermissibly “vague”
and speculative. D. 15 at 17-18. 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.’” D. 15 at 18 (quoting Reddy, 845 F.3d at 503). 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.
Reddy, 845 F.3d at 496, 503. Here, by contrast, Plaintiffs challenge policies that are in place and
Case 1:17-cv-11730-DJC Document 34 Filed 05/09/18 Page 21 of 52
are being actively enforced. D. 7 ¶¶ 37-38; see SBA List, 134 S. Ct. at 2346 (finding standing to
enjoin enforcement of state statute that had been enforced for decades); Dudley v. Hannaford Bros.
Co., 333 F.3d 299, 306 (1st Cir. 2003) (explaining that a “real and immediate threat” of injury may
be demonstrated through an “offending policy [that] remains firmly in place”). 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. Although “[p]ast exposure to illegal conduct does not in itself show a present case
or controversy regarding injunctive relief,” Lujan, 504 U.S. at 564 (quoting Lyons, 461 U.S. at
102), “[p]ast wrongs [a]re evidence bearing on ‘whether there is a real and immediate threat of
repeated injury,” Lyons, 461 U.S. at 102 (quoting O’Shea v. Littleton, 414 U.S. 488, 496 (1974)).
See, e.g., Morales v. Chadbourne, 996 F. Supp. 2d 19, 37-38 (D.R.I. 2014) (finding standing for
American citizen who had been inappropriately detained by ICE twice and warned that it could
happen again); Thomas v. Cty. of L.A., 978 F.2d 504, 507 (9th Cir. 1992) (explaining that the
“possibility of recurring injury ceases to be speculative when actual repeated incidents are
documented” (quoting Nicacio v. U.S. INS, 797 F.2d 700, 702 (9th Cir. 1985))); cf. Penobscot
Nation v. Mills, 861 F.3d 324, 336-37 (1st Cir. 2017) (denying standing at summary judgment
where there was no evidence of prior enforcement of the policy in question against the plaintiffs).
Here, all Plaintiffs have been subjected to electronics searches at the border and four Plaintiffs
have been subjected to multiple device searches. D. 7 ¶¶ 2, 62-155. Plaintiffs’ theory of standing,
therefore, is sufficiently concrete to plausibly allege injury-in-fact.
Case 1:17-cv-11730-DJC Document 34 Filed 05/09/18 Page 22 of 52
Plaintiffs’ allegations of future harm are no less concrete because they omit specific plans
or dates of future travel. Defendants argue that without such details, Plaintiffs have merely
expressed “some day” intentions to travel, which are not enough to establish actual or imminent
injury. D. 15 at 19 (quoting Lujan, 504 U.S. at 564). In Lujan, the two individuals in question
stated in affidavits that they intended to return to the habitats in question sometime “in the future,”
which was insufficient to establish “at the summary judgment stage, a factual showing of
perceptible harm.” Lujan, 504 U.S. at 563-64, 566. As a result, with plaintiffs “alleg[ing] only an
injury at some indefinite future time,” the Court held that the “imminence” requirement for future
injury had “been stretched beyond the breaking point.” Id. at 564 n.2. As Justice Kennedy
explained in his concurring opinion, the requirement for travel specifics was warranted in that case
because it was “not a case where it [wa]s reasonable to assume that the affiants will be using the
sites on a regular basis . . . nor d[id] the affiants claim to have visited the sites since the projects
commenced.” Id. at 579 (Kennedy, J., concurring) (citation omitted). Plaintiffs argue that their
allegations sufficiently demonstrate a “realistic risk of future exposure to [the] challenged policy,”
Berner, 129 F.3d at 24, through their allegations that they regularly travel outside the U.S. for
work, visiting friends and family, vacation and tourism, D. 19 at 19-20; e.g., D. 7 ¶¶ 2, 62, 73, 77,
81, 86, 105, 114, 126, 143, and will continue to do so in the future, D. 7 ¶ 156.
This case is distinct from Lujan on several bases. First, this case is only at the motion to
dismiss phase, unlike the summary judgment stage in Lujan, 504 U.S. at 561, 566. Second,
exposure to CBP and ICE policy does not require travel to a specific destination, but rather only
requires some international travel and return to the U.S.; it is reasonable to infer from the
allegations in the complaint that these Plaintiffs will engage in international travel again in the
future, cf. id. at 579 (Kennedy, J., concurring), particularly as Plaintiffs allege prior travel abroad
Case 1:17-cv-11730-DJC Document 34 Filed 05/09/18 Page 23 of 52
and professional backgrounds that might warrant future travel. See Lyons, 461 U.S. at 102
(looking to plaintiffs’ prior actions to determine likelihood of future injury); Lujan, 504 U.S. at
592 (Blackmun, J., dissenting). Given this case’s posture, the breadth of activity that would
compel exposure to the policies at issue and Plaintiffs’ allegations of prior travel and professional
activity, Plaintiffs’ allegations in this context are sufficient to allege actual or imminent injury.
Finally, Defendants argue that Plaintiffs have failed to establish standing because their risk
of injury is no greater than that of the general public, rendering their alleged harm a generalized
grievance inappropriate for adjudication. D. 15 at 19. “[A] plaintiff raising only a generally
available grievance about government—claiming only harm to his and every citizen’s interest in
proper application of the Constitution and laws, and seeking relief that no more directly and
tangibly benefits him than it does the public at large—does not state an Article III case or
controversy.” Lujan, 504 U.S. at 573-74. Defendants focus solely upon whether Plaintiffs’ “future
risk of a device search” is greater than that of the general public, D. 15 at 19, but simply that a
harm may be “widely shared” does not eliminate a plaintiff’s standing to sue. Massachusetts, 549
U.S. at 522. Rather, plaintiffs lack standing under the generalized grievance rule when the alleged
injury is “not only widely shared, but is also of an abstract and indefinite nature.” FEC v. Akins,
524 U.S. 11, 23 (1998). Plaintiffs may plausibly allege standing regardless of “how many persons
have been injured by the challenged action” if they plausibly allege that their individual rights have
been or will be infringed in some “concrete and personal way.” Massachusetts, 549 U.S. at 517,
(quoting Lujan, 504 U.S. at 581 (Kennedy, J., concurring)); see Akins, 524 U.S. at 24; Public
Citizen v. U.S. Dep’t of Justice, 491 U.S. 440, 449-50 (1989) (explaining that “[t]he fact that other
citizens or groups of citizens might make the same complaint . . . does not lessen appellants’
Case 1:17-cv-11730-DJC Document 34 Filed 05/09/18 Page 24 of 52
asserted injury”). As the Court has explained, Plaintiffs have plausibly alleged a concrete, personal
injury in the form of violation of their individual rights.
Plaintiffs also argue that their risk of search is higher than that of the general public because
they have been searched before. D. 19 at 20-21. This argument is supported by the multiple
searches of four Plaintiffs, despite the aforementioned low probability of subjection of the general
public to a border search. Plaintiffs argue that Defendants’ policies “alert officers to the past
searches and confiscations, which may increase the likelihood of repeated searches.” D. 19 at 20
(citing Tabbaa v. Chertoff, No. 05-cv-582S, 2005 U.S. Dist. LEXIS 38189, 2005 WL 3531828, at
*9 (W.D.N.Y. Dec. 22, 2005), aff’d, 509 F.3d 89 (2d Cir. 2007)), a contention that may be borne
out by discovery.
For all of these reasons, the Court DENIES Defendants’ motion to dismiss on the basis that
Plaintiffs lack standing, as Plaintiffs have plausibly alleged that they face a substantial risk of
future harm from Defendants’ ongoing enforcement of their border electronics search policies.
Standing to Seek Expungement
Plaintiffs also seek expungement of all data or information “gathered from, or copies made
of, the contents of Plaintiffs’ electronic devices, and all of Plaintiffs’ social media information and
device passwords.” D. 7 at 42. Retention of data illegally obtained by law enforcement may
constitute continued harm sufficient to establish standing to seek expungement. See Tabbaa, 509
F.3d at 96 n.2 (stating that defendants there “properly do not contest that plaintiffs possess Article
III standing based upon their demand for expungement” of data collected during border searches);
Hedgepath v. Wash. Metro. Area Transit Auth., 386 F.3d 1148, 1152 (D.C. Cir. 2004) (holding
plaintiff had standing to seek expungement of arrest record). Defendants challenge Plaintiffs’
standing to seek expungement here. D. 15 at 20-21.
Case 1:17-cv-11730-DJC Document 34 Filed 05/09/18 Page 25 of 52
Defendants argue that, as a factual matter, standing to seek expungement has only been
alleged as to one Plaintiff, Wright, whose information was allegedly extracted and not destroyed
by CBP, as demonstrated through documents he obtained through a FOIA request. D. 15 at 20.
Although Defendants correctly point out that “[n]either conclusory assertions nor unfounded
speculation can supply the necessary heft” to establish standing, D. 15 at 20 (quoting Hochendoner,
823 F.3d at 731), Plaintiffs need not produce FOIA documentation to allege plausibly that
information contained on their devices has been retained by CBP or ICE, especially given—as
explained above—that this is the motion to dismiss stage of litigation.5 Three other Plaintiffs—
the Alasaads and Allababidi—also allege searches involving retention of their electronic devices
for at least two weeks. D. 7 ¶¶ 70-72, 79-80. Six of the remaining seven Plaintiffs allege that
during their “basic” or manual device searches, their devices were searched outside of their
presence for a period of time between ten minutes and four hours.6 D. 7 ¶¶ 84, 90, 96, 102, 107,
112, 117, 135, 140, 146. Given that both ICE and CBP policies in place at the time authorized
conducting advanced searches of electronic devices without any individualized suspicion, D. 7 ¶
58, it is plausible to infer from these facts that advanced searches may have occurred during this
time, see D. 7 ¶ 84 (alleging that agents stated they used “algorithms” to search Bikkannavar’s
phone outside of his presence). These policies, including the 2018 CBP Policy, also sanction
Defendants’ argument that the amended complaint only alleges that “CBP retained the
information it extracted from Mr. Wright’s devices,” D. 7 ¶ 155, omitting any allegations of the
same for other Plaintiffs, ignores other allegations in the pleading. D. 32 at 4 n.2. Plaintiffs
explicitly allege that “[o]n information and belief, Plaintiffs are suffering the ongoing harm of CBP
and ICE retaining (a) content copied from their devices or records reflecting content observed
during searches of their devices, (b) content copied from their cloud-based accounts accessed
through their devices or records reflecting” such content, “(c) their social media identifiers, and/or
(d) their device passwords.” D. 7 ¶ 157. Plaintiffs have not, therefore, failed to allege that
information was retained by Defendants.
Maye alleges that an officer “seized” her unlocked phone “for approximately two hours,” but the
complaint does not allege that such seizure removed her phone from her presence. See D. 7 ¶ 124.
Case 1:17-cv-11730-DJC Document 34 Filed 05/09/18 Page 26 of 52
creating copies of data contained on the devices during—or to be used for—advanced searches,
ICE Pol. ¶ 8.1.4; D. 18-1 ¶¶ 5.1.4, 5.4.1, or to retain the assistance of other agencies and third
parties, ICE Pol. ¶ 8.4.4; D. 18-1 ¶¶ 18.104.22.168-2. It is plausible, therefore, to infer that data or
information from the devices may have been copied or otherwise documented during these
Defendants also argue that Plaintiffs do not have standing to seek expungement because
expungement would not redress Plaintiffs’ alleged injury. D. 15 at 20-21. Redressability, the third
standing requirement, see Spokeo, 136 S. Ct. at 1547, requires that Plaintiffs demonstrate “a
likelihood that prevailing in the action will afford some redress for the injury.” City of Bangor v.
Citizens Commc’ns Co., 532 F.3d 70, 92 (1st Cir. 2008) (quoting Me. People’s All. V.
Mallinckrodt, Inc., 471 F.3d 277, 283 (1st Cir. 2006)).
Plaintiffs’ burden to demonstrate
redressability, as with injury, is “relatively modest” at the motion to dismiss stage. Bennett v.
Spear, 520 U.S. 154, 171 (1997). Plaintiffs’ injury “is redressable if the relief sought can
compensate the plaintiff for his losses or ‘eliminate any effects’ caused by a defendant’s challenged
conduct.” Janfeshan v. U.S. Customs & Border Prot., No. 16-cv-6915, 2017 U.S. Dist. LEXIS
151058, 2017 WL 3972461, at *6 (E.D.N.Y. Aug. 21, 2017) (quoting Steel Co. v. Citizens for a
Better Env’t, 523 U.S. 83, 106 (1998)).
Plaintiffs have plausibly demonstrated that expungement of their data would afford some
redress for their alleged injury here.
Plaintiffs argue that retention of their information
“compounds the violations of [their] Fourth Amendment rights, because Defendants remain free
to use and exploit it or share it with other agencies that may do the same.” D. 19 at 24; see Tabbaa,
509 F.3d at 96 n.2; Hedgepath, 386 F.3d at 1152. Defendants argue that expungement “would not
likely result from a favorable resolution of [Plaintiffs’] claims” because “[t]he government’s use
Case 1:17-cv-11730-DJC Document 34 Filed 05/09/18 Page 27 of 52
of ‘evidence obtained in violation of the Fourth Amendment does not itself violate the
Constitution.’” D. 15 at 20 (quoting Pa. Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 362 (1998)).
First, however, Defendants’ argument does not go to redressability, but rather to the merits of the
constitutional claim and remedy sought. Defendants do not argue that expungement would
insufficiently redress Plaintiffs’ alleged injury—continued violation of the Fourth Amendment
through retention of Plaintiffs’ data—but rather suggest that retention of Plaintiffs’ data is not itself
a violation of the Fourth Amendment. D. 15 at 20-21. Indeed, to the extent Plaintiffs’ information
was copied or obtained, subsequently retained and not destroyed by CBP or ICE, the destruction
of these copies or data could redress such injury. See Janfeshan, 2017 WL 3972461, at *7.
Second, where allegations of redressability are stated plausibly, foreclosure of this remedy
to Plaintiffs at this early juncture is not warranted. Expungement is a remedy that falls within the
Court’s equitable discretion. See United States v. Coloian, 480 F.3d 47, 50 (1st Cir. 2007); Reyes
v. Supervisor of DEA, 834 F.2d 1093, 1098 (1st Cir. 1984); Chastain v. Kelley, 510 F.2d 1232,
1235 (D.C. Cir. 1975) (stating that “federal courts are empowered to order the expungement of
Government records where necessary to vindicate rights secured by the Constitution or by
statute”). The availability of the remedy, therefore, depends upon the scope of the Defendants’
ultimate liability here. See Janfeshan, 2017 WL 3972461, at *13 (declining to dismiss the
plaintiff’s “‘claims’ for CBP’s expungement of certain records” before determining the scope of
the defendants’ liability); Hassan v. City of N.Y., 804 F.3d 277, 293-94 (3d Cir. 2015) (explaining
that “the potential avenues for redress depend on how a particular plaintiff’s injury shows itself”
and may fall within a “range of available remedies”).
The Court thus DENIES Defendants’ motion to dismiss on the basis that Plaintiffs lack
standing to seek expungement.
Case 1:17-cv-11730-DJC Document 34 Filed 05/09/18 Page 28 of 52
Plaintiffs’ Fourth Amendment Claims
The Fourth Amendment establishes that “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation,
and particularly describing the place to be searched, and the persons or things to be seized.” U.S.
Const. amend. IV. The Fourth Amendment ensures that “the usual inferences which reasonable
men draw from evidence . . . . be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting out crime.” Johnson
v. United States, 333 U.S. 10, 14 (1948). “The amendment grew out of American colonial
opposition to British search and seizure practices, most notably the use of writs of assistance,
which gave customs officials broad latitude to search houses, shops, cellars, warehouses, and other
places for smuggled goods.” United States v. Wurie, 728 F.3d 1, 3 (2013), aff’d sub. nom., Riley
v. California, ___ U.S. ___, 134 S. Ct. 2473 (2014).
“[T]he ultimate touchstone of the Fourth Amendment is reasonableness,” Riley, 134 S. Ct.
at 2482 (quoting Brigham City v. Stuart, 547 U.S. 398, 403 (2006)), and “reasonableness generally
requires the obtaining of a judicial warrant,” id. (quoting Vernonia School Dist. 47J v. Acton, 515
U.S. 646, 653 (1995)).
“[A] warrantless search is per se unreasonable under the Fourth
Amendment, unless one of ‘a few specifically established and well-delineated exceptions’
applies.” Wurie, 728 F.3d at 3 (quoting Arizona v. Gant, 556 U.S. 332, 338 (2009)). The border
search exception, “grounded in the recognized right of the sovereign to control, subject to
substantive limitations imposed by the Constitution, who and what may enter the country,” is one
such exception. United States v. Ramsey, 431 U.S. 606, 620 (1977).
Although, as an exception to the warrant requirement, border searches “have been
considered to be ‘reasonable’ by the single fact that the person or item in question had entered into
Case 1:17-cv-11730-DJC Document 34 Filed 05/09/18 Page 29 of 52
our country from outside,” id. at 619, the exception is not limitless. Border searches must still be
“reasonable,” and the Court must still—as with searches conducted in the interior—balance “the
sovereign’s interests” with the privacy interests of the individual. United States v. Montoya de
Hernandez, 473 U.S. 531, 539 (1985). Notably, however, the balance of interests is different at
the border: the state has “a paramount interest in protecting its territorial integrity,” and an
individual’s “expectation of privacy is less at the border than it is in the interior.” United States v.
Flores-Montano, 541 U.S. 149, 153-54 (2004). That is, CBP and ICE argue that the ‘border is
different’ from any other search context and there is no Fourth Amendment impediment to their
By contrast, Plaintiffs argue that ‘digital is different.’ See D. 25 at 8.7 They contend that
the border searches at issue here run afoul of the Fourth Amendment due to the unique
characteristics of electronic devices. D. 19 at 25-37. As to the border searches themselves,
Plaintiffs argue that there is no meaningful distinction between basic and advanced (or manual and
forensic) searches articulated in the CBP and ICE policies. D. 19 at 35. In light of the “the great
volume and detail of personal information that electronic devices contain,” even manual searches,
they allege, are “extraordinarily invasive.” D. 7 ¶ 41.
See D. 7 ¶¶ 27-36. Plaintiffs allege (1)
that the warrantless searches of travelers’ electronic devices conducted at the border or
international ports of entry, pursuant to the CBP and ICE policies, violate the Fourth Amendment,
and (2) that the confiscation of devices absent probable cause violates the Fourth Amendment. D.
7 ¶¶ 169, 173. The Court begins by focusing on Plaintiffs’ first Fourth Amendment claim, which
An amicus brief filed by the Brennan Center for Justice, the Center for Democracy & Technology,
the R Street Institute and TechFreedom details the extent to which digital devices differ from
containers at issue in prior border search cases given that they “contain great quantities of
extremely sensitive information.” D. 25 at 7.
Case 1:17-cv-11730-DJC Document 34 Filed 05/09/18 Page 30 of 52
applies to all Plaintiffs (Count I), and then addressing Plaintiffs’ confiscation claim which applies
to certain of the Plaintiffs (Count III).
Six years ago, this Court was unpersuaded by the argument that, under Fourth Amendment
jurisprudence, unique characteristics of cell phones and other electronic devices justified requiring
a heightened level of suspicion for searches conducted at the border. House v. Napolitano, No.
11-10852-DJC, 2012 U.S. Dist. LEXIS 42297, 2012 WL 1038816, at *8 (D. Mass. Mar. 28, 2012).
In House, similar to Plaintiffs here, House challenged the constitutionality of officers’ search of
his laptop and other electronic devices at the border under the Fourth Amendment, arguing that
the search was “highly intrusive given the personal nature and quality of information stored on
these devices.” Id. at *6. The Court explained that in the Fourth Amendment context, “[i]t is the
level of intrusiveness of the search that determines whether the search is routine, not the nature of
the device or container to be searched.” Id. at *8 (citing United States v. Giberson, 527 F.3d 882,
888 (9th Cir. 2008)). The Court rejected House’s argument, explaining that a laptop and other
electronic devices are “akin to the search of a suitcase and other closed containers,” which “require
no particularized suspicion,” id. at *7, but declined to dismiss House’s Fourth Amendment claim
because the prolonged detention of his electronic devices for forty-nine days was not “reasonably
related in scope to the circumstances which justified it initially.” Id. at *9 (quoting United States
v. Cotterman, 637 F.3d 1068, 1082 (9th Cir. 2011), rev’d en banc, 709 F.3d 952 (9th Cir. 2013)).
Two years after this Court’s ruling in House, as Plaintiffs point out, D. 19 at 25-31, the
Supreme Court issued Riley, in which the Court held that the search-incident-to-arrest exception
does not extend to cell phones, but rather the Fourth Amendment requires police to obtain a warrant
supported by probable cause to search a phone seized during an arrest. Riley, 134 S. Ct. at 2494-
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95. Moreover, the Supreme Court in Riley affirmed the First Circuit’s ruling in Wurie, 728 F.3d
at 13, which also came after this Court’s ruling in House.
Riley, Wurie and the Search Incident to Arrest Exception
In Riley, the Supreme Court addressed the applicability of the search incident to arrest
exception to cell phones and established a categorical rule requiring that officers obtain search
warrants prior to searching cell phones. Riley, 134 S. Ct. at 2485. Justice Roberts, writing for a
unanimous Court,8 explained that “[a]bsent more precise guidance from the founding era, we
generally determine whether to exempt a given type of search from the warrant requirement ‘by
assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on
the other, the degree to which it is needed for the promotion of legitimate government interests.’”
Riley, 134 S. Ct. at 2484 (quoting Wyoming v. Houghton, 526 U.S. 295, 300 (1999)). The Court
explained that the balancing of interests did not support extending the exception “to modern cell
phones, which are now such a pervasive and insistent part of daily life that the proverbial visitor
from Mars might conclude they were an important feature of human anatomy.” Id.
The Court analyzed the rationales behind the search incident to arrest exception to
determine whether application of the doctrine to “this particular category of effects would ‘untether
the rule from the justifications underlying’” the exception. Id. at 2485 (quoting Gant, 556 U.S. at
343). Although the search incident to arrest exception has been described as “always recognized
under English and American law,” Weeks v. United States, 232 U.S. 383, 392 (1914), it was not
until 1969, in Chimel v. California, that the Supreme Court articulated the rationales behind the
exception: removing weapons to ensure officer safety and preventing the destruction of evidence.
Chimel, 395 U.S. 752, 762-63 (1969). Neither justification, the Riley Court explained, supported
Justice Alito concurred in part and concurred in the judgment. Riley, 134 S. Ct. at 2495.
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the application of the exception to cell phones. Riley, 134 S. Ct. at 2485-88. The Court rejected
the government’s arguments that cell phones are “vulnerable to two types of evidence destruction
unique to digital data—remote wiping and data encryption” because “broader concerns about the
loss of evidence are distinct” from the rationale supporting the exception, the Court “ha[d] also
been given little reason to believe that either problem is prevalent,” and it was unclear that the
ability to conduct a cell phone search without a warrant would “make much of a difference.” Id.
As to the individual’s privacy interests implicated, “[m]odern cell phones, as a category,
implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet,
or a purse.” Id. at 2488-89. The Supreme Court expounded at length upon the extent to which
“[c]ell phones differ in both a quantitative and a qualitative sense from other objects that might be
kept on an arrestee’s person.” Id. at 2489. Quantitatively, whereas “[m]ost people cannot lug
around every piece of mail they have received for the past several months, every picture they have
taken, or every book or article they have read—nor would they have any reason to attempt to do
so,” cell phones have an “immense storage capacity,” allowing people to carry an amount of data
no longer limited by physical practicability. Id. “The sum of an individual’s private life can be
reconstructed through a thousand photographs labeled with dates, locations, and descriptions”
dating back to the purchase of the phone, or earlier; “the same cannot be said of a photograph or
two of loved ones tucked into a wallet.” Id. Qualitatively, a person’s internet browsing history,
historic location information, and mobile application software (or “apps”) “can form a revealing
montage of the user’s life.” Id. at 2490. Indeed, the Court stated that “a cell phone search would
typically expose to the government far more than the most exhaustive search of a house.” Id. at
2491 (emphasis in original). Moreover, the ease with which a cell phone may be used to access
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remote files illustrates that a cell phone search “might extend well beyond papers and effects in
the physical proximity of an arrestee,” providing “yet another reason that the privacy interests here
dwarf those” in prior search incident to arrest cases. Id.
The Riley court rejected the government’s proposed alternative standards, including that
“from the vehicle context, allowing a warrantless search of an arrestee’s cell phone whenever it is
reasonable to believe that the phone contains evidence of the crime of arrest.” Id. at 2492. The
Supreme Court explained that the exception for warrantless searches of a vehicle’s passenger
compartment carved out in Gant, 556 U.S. at 343, was inapplicable to cell phone searches for
several reasons. Riley, 134 S. Ct. at 2492. First, the circumstances of the vehicle search involved
further “reduced expectation[s] of privacy” and “heightened law enforcement needs” absent with
cell phone searches. Id. (quoting Thornton v. United States, 541 U.S. 615, 632 (2004) (Scalia, J.,
concurring)); see Gant, 556 U.S. at 345. Second, crucially, the “Gant standard would prove no
practical limit at all when it comes to cell phone searches,” given the physical and temporal
limitations present in a Gant scenario that are absent in a Riley scenario. Riley, 134 S. Ct. at 2492.
The Court noted that “[i]t would be a particularly inexperienced or unimaginative law enforcement
officer who could not come up with several reasons to suppose evidence of just about any crime
could be found on a cell phone.” Id. Given the Court’s “general preference to provide clear
guidance to law enforcement through categorical rules,” and avoid “a difficult line-drawing
expedition” for officers and courts alike, the Court rejected the government’s “fallback options”
in favor of a warrant requirement that would apply to all cell phone searches conducted incident
to arrest. Id. at 2491-93; see id. at 2497 (Alito, J., concurring) (explaining that although the Court’s
holding might “lead to anomalies,” he did “not see a workable alternative” given that “[l]aw
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enforcement officers need clear rules . . . and it would take many cases and many years for the
courts to develop more nuanced rules”).
It is also worth noting that one of the two cases on appeal in Riley was Wurie, a 2013 First
Circuit opinion reversing the denial of a motion to suppress and holding that cell phones are distinct
from other physical possessions that may be searched incident to arrest without a warrant. Wurie,
728 F.3d at 13-14. The First Circuit pointed to Seventh Circuit case law acknowledging that “[a]t
the touch of a button a cell phone search becomes a house search, and that is not a search of a
‘container’ in any normal sense of that word, though a house contains data.” Id. at 8-9 (quoting
United States v. Flores-Lopez, 670 F.3d 803, 806 (7th Cir. 2012)). Ultimately, however, the First
Circuit parted ways with the Seventh Circuit and a “majority” of jurisdictions that had upheld
warrantless cell phone data searches. Id. at 5, 13. The First Circuit concluded instead that cell
phone searches incident to arrest are not justified by the Chimel rationales, and that the nature and
scope of the search exceeded the purposes of the warrant exception. Id. at 7-12. The court
explained that cell phones store “much more personal information . . . than could ever fit in a
wallet, address book, briefcase, or any of the other traditional containers that the government has
invoked.” Id. at 9.
Adhering to “the Supreme Court’s insistence on bright-line rules in the Fourth Amendment
context,” the First Circuit explained that while some searches of cell phones might be less invasive
than others, “it is necessary for all warrantless cell phone data searches to be governed by the same
rule.” Id. at 12-13. In the court’s view, the government’s desire for warrantless cell phone searches
was “a convenient way for the police to obtain information related to a defendant’s crime of arrest,”
and the court found no Supreme Court jurisprudence sanctioning “such a ‘general evidencegathering search.’” Id. at 13 (quoting Thornton, 541 U.S. at 632 (Scalia, J., concurring)). The
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First Circuit likened the government’s proposed approach to “customs officers in the early colonies
[who] could use writs of assistance to rummage through homes and warehouses, without any
showing of probable cause linked to a particular place or item sought,” the very ill the Founders
sought to eradicate with the Fourth Amendment. Id. at 9. In Riley, the Supreme Court affirmed
the First Circuit’s ruling. Riley, 134 S. Ct. at 2495.
Riley and the Border Search Exception
Defendants argue that Riley does not apply to the border search context. D. 15 at 25-27.
Defendants state that “Riley itself noted that its holding was limited to the search incident to arrest
context” by acknowledging that “‘other case-specific exceptions may still justify a warrantless
search of a particular phone.’” D. 15 at 26 (quoting Riley, 134 S. Ct. at 2492). On that basis,
Defendants contend, the argument that Riley “imposes a warrant requirement” in the border search
context “is without merit and has been repeatedly rejected.” D. 15 at 25. Additionally, and more
substantively, Defendants contend that, unlike the rationales behind the search incident to arrest
exception, the border search exception “serves different and broader purposes” that “apply in full
force to searches of electronic media.” D. 15 at 26-27.
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.” See id. at 2483; Ramsey, 431 U.S. at 617. In fact, the Supreme Court has referenced
search incident to arrest doctrine within its border search jurisprudence in the past, characterizing
the two exceptions as “similar.” Ramsey, 431 U.S. at 621 (explaining that the border search is “a
longstanding, historically recognized exception to the Fourth Amendment’s general principle that
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a warrant be obtained, and in this respect is like the similar ‘search incident to lawful arrest’
exception”). The reasoning in Riley may, therefore, carry some persuasive weight in the border
search context. See, e.g., United States v. Kolsuz, 185 F. Supp. 3d 843, 856 (E.D. Va. 2016)
(considering scope of privacy interest at border in light of Riley); United States v. Kim, 103 F.
Supp. 3d 32, 54-58 (D.D.C. 2015) (same); cf. United States v. Camou, 773 F.3d 932, 942-43 (9th
Cir. 2014) (extending Riley to the vehicle exception context); United States v. Lara, 815 F.3d 605,
610-12 (9th Cir. 2016) (applying Riley to probation search context); United States v. Henry, 827
F.3d 16, 28 (1st Cir. 2016) (rejecting defendant’s Riley argument in the “plain view” context not
because Riley was categorically irrelevant but because the officers had obtained a warrant prior to
the smart phone search).
Additionally, the cases Defendants reference to argue that Plaintiffs’ Fourth Amendment
claim has been “repeatedly rejected,” D. 15 at 26 n.8, carry limited weight here. The majority of
these cases arose in district courts within the Ninth Circuit, where Cotterman, 709 F.3d at 968, a
Ninth Circuit en banc decision predating Riley, still controls. See, e.g., United States v. Mendez,
240 F. Supp. 3d, 1005, 1008 (D. Ariz. 2017); United States v. Ramos, 190 F. Supp. 3d 992, 100203 (S.D. Cal. 2016); United States v. Lopez, No. 13-CR-2092 WQH, 2016 U.S. Dist. LEXIS
176920, 2016 WL 7370030, at *5 (S.D. Cal. Dec. 20, 2016). In Cotterman, the Ninth Circuit held
that a forensic device search initiated at the border required reasonable suspicion, explaining that
“the uniquely sensitive nature of data on electronic devices carries with it a significant expectation
of privacy and thus renders an exhaustive exploratory search more intrusive than with other forms
of property.” Cotterman, 709 F.3d at 966. Lower courts in the Ninth Circuit are bound by the
Cotterman standard, unable to apply Riley in the border context unless they find the two cases
“clearly irreconcilable,” which, as several courts have explained, they are not. See United States
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v. Caballero, 178 F. Supp. 3d 1008, 1018 (S.D. Cal. 2016) (explaining that “[a]lthough Riley could
be applied to a cell phone search at the border, this Court is bound by Cotterman”); Lopez, 2016
WL 7370030, at * 5.9
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.”
Wurie, 728 F.3d at 8.
Searches of cell phones are fundamentally different from “the kinds of
reasonable, self-limiting searches that do not offend the Fourth Amendment, even when conducted
without a warrant.” Id. at 9-10. The court also emphasized the necessity behind a bright-line rule
favoring a warrant requirement, explaining that “[a] series of opinions allowing some cell phone
data searches but not others, based on the nature and reasonableness of the intrusion, would create
exactly the ‘inherently subjective and highly fact specific’ set of rules that the Court has warned
against and would be extremely difficult for officers in the field to apply.” Id. at 12-13 (quoting
Thornton, 541 U.S. at 623).
While it is correct that neither the Supreme Court nor the First Circuit have yet held that a
warrant is required for a particular type of search conducted at the border, the Court considers
Plaintiffs’ claim against the current legal backdrop framed by Riley and Wurie and thus turns to
Likewise, district courts in the Fourth Circuit are bound by pre-Riley precedent in United States
v. Ickes, in which the Fourth Circuit held that a manual digital search of an electronic device is a
routine border search, requiring no individualized suspicion, Ickes, 393 F.3d 501, 505-06 (4th Cir.
2005). See Kolsuz, 185 F. Supp. 3d at 854-55; United States v. Saboonchi, 990 F. Supp. 2d 536,
560 (D. Md. 2014).
Case 1:17-cv-11730-DJC Document 34 Filed 05/09/18 Page 38 of 52
the merits to determine whether Plaintiffs have plausibly alleged a Fourth Amendment violation
for warrantless border device searches.
The border search exception is widely considered as old as the United States itself. See
Ramsey, 431 U.S. at 616-17. “The Congress which proposed the Bill of Rights, including the
Fourth Amendment, to the state legislatures on September 25, 1789, 1 Stat. 97, had, some two
months prior to that proposal, enacted the first customs statute, Act of July 31, 1789, c. 5, 1 Stat.
29 . . . . grant[ing] customs officials ‘full power and authority’ to enter and search ‘any ship or
vessel, in which they shall have reason to suspect any goods, wares or merchandise subject to duty
shall be concealed.’” Id. at 616. The Supreme Court reiterated in 1886 and 1925 that border
searches are “reasonable” and, therefore, not prohibited by the Fourth Amendment. See Boyd v.
United States, 116 U.S. 616, 623 (1886); Carroll v. United States, 267 U.S. 132, 147 (1925).
As with all Fourth Amendment exceptions, the border search exception is “subject to
substantive limitations imposed by the Constitution.” Ramsey, 431 U.S. at 620. The Court
determines “the permissibility of a particular law enforcement practice . . . by ‘balancing its
intrusion on the individual’s Fourth Amendment interest against its promotion of legitimate
governmental interests.’” Montoya de Hernandez, 473 U.S. at 537 (quoting United States v.
Villamonte-Marquez, 462 U.S. 579, 588 (1983)).
“[T]he Fourth Amendment’s balance of
reasonableness is qualitatively different at the international border than in the interior.” Id. at 538.
Individuals have a reduced expectation of privacy at the international border, while the
government’s “interest in preventing the entry of unwanted persons and effects is at its zenith”
there. Flores-Montano, 541 U.S. at 154, 152.
The border search slate, however, is not unlike the one on which the Supreme Court wrote
in Riley. Like the border search exception’s historical foundation, the search incident to arrest
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exception, as the Court detailed in Riley, was “always recognized under English and American
law,” Riley, 134 S. Ct. at 2482 (quoting Weeks, 232 U.S. at 392). Moreover, with searches incident
to arrest, the balance also tilts favorably toward the government. See id. at 2488 (explaining that
“[t]he search incident to arrest exception rests not only on the heightened government interests at
stake in a volatile arrest situation, but also on an arrestee’s reduced privacy interests upon being
taken into police custody”). The Court nevertheless explained that an arrestee’s “diminished
privacy interests do not mean that the Fourth Amendment falls out of the picture entirely.” Id.
Rather, the unique attributes of cell phones so increased the privacy interests of individuals that
the balancing of interests that typically support the search incident to arrest exception no longer
applied. See id. at 2484-85, 2488; Wurie, 728 F.3d at 9.
The border search serves the nation’s “paramount interest in protecting its territorial
integrity.” Flores-Montano, 541 U.S. at 153. The rationales supporting the border search
exception are the sovereign’s interest in protecting the “integrity of the border,” by “[r]egulat[ing]
the collection of duties” and “prevent[ing] the introduction of contraband into this country.”
Montoya de Hernandez, 473 U.S. at 538, 537; see Carroll, 267 U.S. at 154 (explaining that
“[t]ravellers may be so stopped . . . because of national self protection reasonably requiring one
entering the country to identify himself as entitled to come in, and his belongings as effects which
may be lawfully brought in”). The Supreme Court has characterized customs officials’ role at the
border as greater than that of “investigative law enforcement,” explaining that customs offers “are
also charged . . . with protecting this Nation from entrants who may bring anything harmful into
this country, whether that be communicable diseases, narcotics, or explosives.” Montoya de
Hernandez, 473 U.S. at 544.
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Plaintiffs argue that “warrantless searches of electronic devices are not sufficiently tethered
to the narrow purposes justifying the border search exception:
immigration and customs
enforcement.” D. 19 at 28-29. If the border exception seeks to enable officers to prevent illicit
“contraband” from entering the country, see Montoya de Hernandez, 473 U.S. at 537, a search of
digital data may not be necessary to achieve that aim. See Kolsuz, 185 F. Supp. 3d at 858
(explaining that digital information “is merely indirect evidence of things an individual seeks to
export illegally—not the things themselves—and therefore the government’s interest in obtaining
this information is less significant than the government’s interest in directly discovering the items
to be exported illegally”); United States v. Molina-Isidoro, 267 F. Supp. 3d 900, 909 n.10 (W.D.
Tex. 2016). Defendants argue that devices “can contain contraband (such as child pornography),
information regarding the inadmissibility of prohibited goods or persons, or material (such as
classified information, malware, or export-controlled material) that, if illicitly transferred beyond
our borders, could pose a direct threat to our national security.” D. 15 at 27. The Court agrees
with Plaintiffs that “information regarding the inadmissibility of prohibited goods or persons,” id.,
is distinct from contraband. D. 19 at 30 n.20; see Boyd, 116 U.S. at 623 (explaining that search
and seizure of “goods liable to duties and concealed to avoid the payment thereof are totally
different things from a search for and seizure of a man’s private books and papers for the purpose
of obtaining information therein contained, or of using them as evidence against him”).
Digital contraband like child pornography, however, falls within the ambit of the border
search exception’s rationales. Plaintiffs argue that unlike physical contraband, digital contraband
may also cross borders digitally, through the internet, and need not physically cross the border to
enter the country. D. 19 at 30. Additionally, they argue that to the extent such digital contraband
is truly transported across the border through these devices, the government cannot demonstrate
Case 1:17-cv-11730-DJC Document 34 Filed 05/09/18 Page 41 of 52
that such incidents are “prevalent” enough to justify a categorical rule permitting warrantless
device searches at the border. Id. (quoting Riley, 134 S. Ct. at 2486). The U.S. Sentencing
Commission explained in 2012 that “[t]he vast majority of child pornography offenders today use
the Internet or Internet-related technologies to access and distribute child pornography.” U.S.
Sent’g Comm’n, 2012 Report to the Congress: Federal Child Pornography Offenses 41-42
(2012)10; see id. at 48-56 (describing peer-to-peer file sharing and other platforms enabling file
sharing on the internet). With the limited record before the Court, the prevalence of physical
transfers of illicit digital contraband across the U.S. borders (as opposed to through the internet) is
Additionally, although the Court agrees with Defendants that digital contraband is not
“untethered” from the rationales supporting the border search exception, it is unclear at this
juncture the extent to which a warrant requirement would impede customs officers’ ability to ferret
out such contraband.11 “[T]he mere fact that law enforcement may be made more efficient can
never by itself justify disregard of the Fourth Amendment.” Wurie, 728 F.3d at 11 (quoting
Mincey v. Arizona, 437 U.S. 385, 393 (1978)). Indeed, as Justice Roberts pointed out in Riley,
“[r]ecent technological advances similar to those discussed here have, in addition, made the
process of obtaining a warrant itself more efficient.” Riley, 134 S. Ct. at 2493. Although a warrant
might “have an impact on the ability of law enforcement to combat crime,” id., it is unclear—
Available online at http://www.ussc.gov/sites/default/files/pdf/news/congressional-testimonyand-reports/sex-offense-topics/201212-federal-child-pornographyoffenses/Full_Report_to_Congress.pdf.
One district court explained, prior to Riley, in holding that forensic searches require reasonable
suspicion, such a ruling is not “likely meaningfully to change anything that actually happens at the
border,” because “[c]ustoms officials do not have the time or resources—or, most likely, the
inclination—to perform random or suspicionless forensic searches.” Saboonchi, 990 F. Supp. 2d
at 570. The court was unaware of “any case where a forensic search was performed in the absence
of reasonable suspicion.” Id. (citing cases).
Case 1:17-cv-11730-DJC Document 34 Filed 05/09/18 Page 42 of 52
based on the record before the Court at this time—the extent to which such impediment justifies
applying the border search exception to electronic devices. This is particularly true where the
government’s interests—even if they are not “untethered” to the exception’s rationales—must be
“[w]eighed against the significant privacy implications inherent in cell phone data searches.”
Wurie, 728 F.3d at 11.
On the other side of the scale, where a traveler’s privacy interests are ordinarily reduced,
Riley indicates that electronic devices implicate privacy interests in a fundamentally different
manner than searches of typical containers or even searches of a person. Riley, 134 S. Ct. at 248889, 2494-95; see Wurie, 728 F.3d at 8. The Supreme Court has held that detention of a traveler at
the border “beyond the scope of a routine customs search and inspection” may be justified when
supported by reasonable suspicion that the traveler is smuggling contraband in their “alimentary
canal,” Montoya de Hernandez, 473 U.S. at 541, and that no level of suspicion is required for a
border search in which officers “remove, disassemble, and reassemble a vehicle’s fuel tank,”
Flores-Montano, 541 U.S. at 155. The First Circuit, likewise, has held that reasonable suspicion—
not probable cause—is required to justify certain “nonroutine” border examinations like strip and
body cavity searches. United States v. Braks, 842 F.2d 509, 512-14 (1st Cir. 1988). The First
Circuit and other circuits have adopted the “routine” and “nonroutine” border search distinction
first articulated in Montoya de Hernandez, 473 U.S. at 541 n.4, often distinguishing between the
two by the intrusiveness of the search. See United States v. Molina-Gómez, 781 F.3d 13, 19 (1st
Cir. 2015); United States v. Kelly, 302 F.3d 291, 294 (5th Cir. 2002); United States v. RamosSaenz, 36 F.3d 59, 61 (9th Cir. 1994).12
The Supreme Court’s dismissal of the “[c]omplex balancing tests” to determine the “degree of
intrusiveness” as applied to border searches of vehicles, Flores-Montano, 541 U.S. at 152, does
not eliminate the intrusiveness inquiry here. There, the Court explained that the “dignity and
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Riley and Wurie indicate that electronic device searches are, categorically, more intrusive
than searches of one’s person or effects. See Riley, 134 S. Ct. 2489 (explaining that “[b]efore cell
phones, a search of a person was limited by physical realities and tended as a general matter to
constitute only a narrow intrusion on privacy”); Wurie, 728 F.3d at 8-9; United States v. Whiteside,
No. 13-cr-576, 2015 U.S. Dist. LEXIS 84369, 2015 WL 3953477, at *4-5 (S.D.N.Y. June 29,
2015) (suppressing contents of digital camera searched incident to arrest based upon Riley). The
ability to review travelers’ cell phones allows officers to view “nearly every aspect of their lives—
from the mundane to the intimate.” Riley, 134 S. Ct. at 2490. Indeed, certain facts alleged here—
including Nadia Alasaad’s and Merchant’s objections due to their photos on their phones of
themselves without headscarves, D. 7 ¶¶ 67, 129—demonstrate the level of intrusiveness a manual
device search can entail. The Constitutional Accountability Center, in its amicus brief, likens
digital device searches to searches of personal papers, explaining that “personal papers
increasingly take the form of digital files” kept on cell phones, laptops, and other electronic
devices. D. 23 at 8. They argue personal papers require greater protection under the Fourth
Amendment because these searches “‘go to the very core of the fourth amendment right of
privacy,’” given the Fourth Amendment’s history and the “inherently ‘personal, private nature of
such papers.’” D. 23 at 18 (quoting James A. McKenna, The Constitutional Protection of Private
Papers: The Role of a Hierarchical Fourth Amendment, 53 Ind. L.J. 55, 68 (1977)); see Craig M.
Bradley, Constitutional Protection for Private Papers, 16 Harv. C.R.-C.L. L. Rev. 461, 483 (1981)
(describing the “psychological intrusion” implicated by searches of personal papers “because the
privacy interests of the person being searched  simply do not carry over to vehicles.” Id.; see
New York v. Class, 475 U.S. 106, 112-13 (1986) (explaining that vehicles implicate a diminished
expectation of privacy). Under current Supreme Court jurisprudence, the opposite holds true for
cell phones. See Riley, 134 S. Ct. at 2489-90.
Case 1:17-cv-11730-DJC Document 34 Filed 05/09/18 Page 44 of 52
searcher is invading not only the subject’s house but his or her thoughts as well”); Ramsey, 431
U.S. at 623-24 (holding that searches for contraband in international mail did not violate the Fourth
Amendment, repeatedly stressing that statutes forbade reading correspondence in the envelopes).
Moreover, the potential intrusion into individuals’ privacy is of “particular concern” in the border
search context because the permissible scope of customs officers’ investigative search is so broad
and need not “be restrained by any limitations of exigency or relevance to a specific crime.”
Camou, 773 F.3d at 943 (explaining that the broad “allowable scope” of a search pursuant to the
vehicle exception supported extending Riley’s holding to cell phone searches in that context).
Defendants argue that even if device searches necessitate heightened suspicion, no higher
standard could apply here than the reasonable suspicion standard.13 D. 15 at 25; see MolinaGómez, 781 F.3d at 19 (explaining that non-routine searches “require reasonable suspicion”).
Plaintiffs argue, however, that the Supreme Court has never suggested that reasonable suspicion
“is a ceiling for every border search.” D. 19 at 33. Defendants emphasized at oral argument that
First Circuit precedent has never required that strip searches in the border context meet a standard
higher than reasonable suspicion, see Braks, 842 F.2d at 512-14, so holding digital searches to a
higher standard would be incongruous. See D. 32 at 6. Notably, however, reasonable suspicion
generally suffices to justify strip searches in the search incident to arrest context, too. See United
States v. Barnes, 506 F.3d 58, 62 (1st Cir. 2007); Swain v. Spinney, 117 F.3d 1, 7 (1st Cir. 1997).14
Reasonable suspicion is generally defined as “a particularized and objective basis for suspecting
the particular person stopped of criminal activity.” United States v. Cortez, 449 U.S. 411, 417-18
(1981); Terry v. Ohio, 392 U.S. 1, 21, 30 (1968) (explaining that the standard is met when officers
can point to “specific and articulable facts” and rational inferences that can be drawn therefrom
indicating that criminal activity “may be afoot”). It is typically viewed within the totality of the
circumstances. See Cortez, 449 U.S. at 417.
Notably, in Swain, the First Circuit again connected the search incident to arrest exception with
the border search exception, explaining that the reasonable suspicion standard was appropriate for
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Nevertheless, the 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.”
Riley, 134 S. Ct. at 2492. Digital device searches at the border, perhaps even when supported by
reasonable suspicion, raise the same concerns.
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, see D. 15
at 23-27, 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. Riley, 134 S. Ct. at 2488-89; see Wurie, 728 F.3d at 11. 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. See Janfeshan, 2017 WL 3972461, at *12 (denying motion
to dismiss Fourth Amendment claim regarding forensic cell phone search at border); Kim, 103 F.
Supp. 3d at 59 (granting motion to suppress where forensic laptop search “was supported by so
little suspicion of ongoing or imminent criminal activity, and was so invasive of Kim’s privacy . .
. that it was unreasonable” under the Fourth Amendment and Riley); United States v. Djibo, 151
F. Supp. 3d 297, 310 (E.D.N.Y. 2015) (granting motion to suppress documents obtained from
warrantless search of phone of outbound passenger under Riley). The Court concludes, therefore,
that Plaintiffs have plausibly alleged a Fourth Amendment claim here.
Plaintiffs also argue that even if Riley does not apply here, “border search precedent
provides a parallel justification for requiring a warrant based on probable cause for border searches
of electronic devices.” D. 19 at 31. Given that the Court has concluded that Riley has some weight
strip and visual body cavity searches in the arrestee context because it was appropriate in other
contexts, including “non-routine border searches.” Swain, 117 F.3d at 7.
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in the border search context and that, on that basis, Plaintiffs have stated a plausible Fourth
Amendment claim, the Court need not reach this further argument.
Defendants’ motion to dismiss Plaintiffs’ Fourth Amendment claim (Count I) is, therefore,
Plaintiffs’ Confiscation Claim
Defendants also seek dismissal of Plaintiffs’ claim that Defendants “violate the Fourth
Amendment by confiscating travelers’ electronic devices, for the purpose of effectuating searches
of those devices after travelers leave the border, absent probable cause” as they are “unreasonable
at their inception, and in scope and duration,” D. 7 ¶ 173. D. 14 at 2; D. 15 at 30-34. Defendants
contend that “[t]he same arguments made with respect to the first cause of action . . . apply equally
here,” arguing that “where the government has authority to search an item at the border, it has
authority to detain that item as necessary to accomplish the search.” D. 15 at 30-31. To the extent
this standard is correct—which the Court does not grant—given this Court’s ruling on Plaintiffs’
Fourth Amendment claim regarding border device searches, and for many of the reasons detailed
above, the Court likewise holds that Plaintiffs have plausibly alleged a Fourth Amendment claim
based upon Defendants’ prolonged detention—or confiscation—of these devices.
The Court notes, moreover, that Plaintiffs’ claim pertaining to confiscations is not
coterminous with Plaintiffs’ border search claim. Unlike border searches, prolonged detentions of
devices—including after travelers have left the border—resemble seizures, and must, therefore, be
reasonable not only at their inception but also for their duration. United States v. Place, 462 U.S.
696, 708-10 (1983) (holding that the ninety-minute detention of luggage was a “seizure” requiring
probable cause); see United States v. Jacobsen, 466 U.S. 109, 124-25 (1984). That is, a device
search that is justified at its inception may nevertheless become unreasonable, giving rise to a
Fourth Amendment claim. See House, 2012 WL 1038816, at *10 (holding that a forty-nine day
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detention of a locked laptop, flash drive and camera raised a plausible Fourth Amendment claim,
despite dismissing claim regarding the search itself); Cotterman, 709 F.3d at 966-67.
Plaintiffs argue that confiscations pursuant to CBP and ICE policies are “excessive” in
scope and duration. D. 7 ¶¶ 56(b)-(c). As this Court has previously explained, “the inquiry into
the reasonableness of the duration of a seizure is . . . an appropriate consideration under the Fourth
Amendment analysis” even at the border. House, 2012 WL 1038816, at *9 (citing Place, 462 U.S.
at 709-10); see United States v. Mitchell, 565 F.3d 1347, 1351-52 (11th Cir. 2009) (holding that a
twenty-one day delay in securing a warrant for a laptop search was unreasonable). Defendants
argue that Plaintiffs’ claim is baseless given that the official policies limit detentions to “a brief,
reasonable period of time.” D. 15 at 34 (quoting D. 18-1 ¶ 5.3.1). The lengths of the detentions
alleged here, however—including ten months for Allababidi and fifty-six days for Wright—
suggest that the Fourth Amendment may require clearer guidance than that. See Riley, 134 S. Ct.
at 2492-93 (reiterating the necessity of “clear guidance” in the Fourth Amendment context).
The Court thus DENIES Defendants’ motion to dismiss Plaintiffs’ Fourth Amendment
claim regarding confiscation of electronic devices pursuant to CBP and ICE policies (Count III).
Plaintiffs’ First Amendment Claim
Finally, Defendants seek dismissal of Plaintiffs’ claim, Count II, that they “violate the First
Amendment by searching electronic devices that contain expressive content and associational
information, absent a warrant supported by probable cause,” D. 7 ¶ 171. D. 14 at 2. The First
Amendment provides that “Congress shall make no law . . . abridging the freedom of speech, or
of the press; or the right of the people peaceably to assemble.” U.S. Const. amend. I. These rights
“are protected not only against heavy-handed frontal attack, but also from being stifled by more
subtle governmental interference.” Bates v. City of Little Rock, 361 U.S. 516, 523 (1960). As the
Supreme Court has explained, “associational rights . . . can be abridged even by government
Case 1:17-cv-11730-DJC Document 34 Filed 05/09/18 Page 48 of 52
actions that do not directly restrict individuals’ ability to associate freely.” Lyng v. Int’l Union,
UAW, 485 U.S. 360, 367 n.5 (1988); see AFL-CIO v. FEC, 333 F.3d 168, 175 (D.C. Cir. 2003)
(explaining that compulsory “disclosure of political affiliations and activities can impose just as
substantial a burden on First Amendment rights as can direct regulation”); Baird v. State Bar of
Ariz., 401 U.S. 1, 6-7 (1971) (explaining that “[w]hen a State seeks to inquire about an individual’s
beliefs and associations a heavy burden lies upon it to show that the inquiry is necessary to protect
a legitimate state interest”).
Plaintiffs argue that warrantless digital device searches substantially burden travelers’
protected rights of freedom of speech and association and chill the exercise of these rights. D. 7
¶ 46; D. 19 at 38-41; see generally D. 26 (amicus brief filed by the Knight First Amendment
Institute at Columbia University and the Reporters Committee for Freedom of the Press). They
explain that the First Amendment rights implicated include the “right to associate with others in
pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends,”
Roberts v. U.S. Jaycees, 468 U.S. 609, 622 (1984); see NAACP v. Alabama, 357 U.S. 449, 460
(1958), the right to publish speech anonymously, see McIntyre v. Ohio Elections Cmm’n, 514 U.S.
334, 351-43; McMann v. Doe, 460 F. Supp. 2d 259, 266 (D. Mass. 2006), and the right to
communicate privately, see Lamont v. Postmaster Gen., 381 U.S. 301, 305 (1965). D. 19 at 38.
Freedom of the press is also implicated here, as with Plaintiffs Dupin and Kushkush. D. 19 at 39;
D. 26 at 11-13; see Bruno & Stilman, Inc. v. Globe Newspaper Co., 633 F.2d 583, 595-96 (1st Cir.
Plaintiffs argue that to justify digital device searches, “[t]he government must have a
compelling interest in the information and use narrowly tailored means that do not seek more
information than necessary.” D. 19 at 38. The Court is not convinced that such strict scrutiny
Case 1:17-cv-11730-DJC Document 34 Filed 05/09/18 Page 49 of 52
applies here, where CBP and ICE policies are content-neutral, see Asociacion de Educacion
Privada de P.R., Inc. v. Garcia-Padilla, 490 F.3d 1, 15-16 (1st Cir. 2007), and, although potentially
burdening speech, do not prevent anyone from speaking, Sindicato Puertotorriqueño de
Trabajadores v. Fortuño, 699 F.3d 1, 12 (1st Cir. 2012). In general, however, compelled disclosure
of First Amendment protected activity “cannot be justified by a mere showing of some legitimate
governmental interest.” Buckley v. Valeo, 424 U.S. 1, 64 (1976). Rather, “even if any deterrent
effect on the exercise of First Amendment rights arises, not through direct government action, but
indirectly as an unintended but inevitable result of the government’s conduct in requiring
disclosure,” there must be a “‘substantial relation between the governmental interest and the
information required to be disclosed.” Id. at 64-65; see Gibson v. Fla. Legislative Investigation
Comm., 372 U.S. 539, 546 (1963). The Court must, therefore, determine whether the complaint
adequately alleges an interference with First Amendment rights that is “direct and substantial” or
“significant.” House, 2012 WL 1038816, at *12 (quoting Fighting Finest v. Bratton, 95 F.3d 224,
228 (2d Cir. 1996)). Plaintiffs argue that given the technological capacities of electronic devices,
the government’s broad search policies “impose a substantial burden on First Amendment rights
without justification.” D. 19 at 41.
Defendants do not argue that warrantless searches would not be a significant or substantial
burden on travelers’ First Amendment rights, nor do they explain their assertion that a heightened
standard is not “required by the First Amendment.” D. 32 at 6 n.4. Rather, Defendants argue that
“the border search doctrine is not subject to a First Amendment exception,” and that if it were, the
consequences would be “staggering.” D. 15 at 29 (quoting Ickes, 393 F.3d at 507, 506). As a
general matter, “[t]hat the initial search and seizure occurred at the border does not strip [Plaintiffs]
of [their] First Amendment rights.” House, 2012 WL 1038816, at *13; Tabbaa, 509 F.3d at 102
Case 1:17-cv-11730-DJC Document 34 Filed 05/09/18 Page 50 of 52
n.4 (explaining that a routine search may constitute a “significant or substantial burden on
plaintiffs’ First Amendment associational rights”).
Moreover, the Court is not persuaded that Ickes, 393 F.3d at 506, upon which Defendants
rely, provides appropriate guidance here. This Court need not carve out an exception for all
expressive material to find a plausible claim has been stated that digital device searches
unjustifiably burden travelers’ First Amendment rights. See House, 2012 WL 1038816, at *13
(holding that the plaintiff stated plausible First Amendment claim for his cell phone search despite
failing to state plausible Fourth Amendment claim). The Supreme Court’s distinction between
cell phones and other expressive materials in Riley, postdating the Fourth Circuit’s ruling in Ickes,
further illustrates this point. See Riley, 135 S. Ct. at 2490. Additionally, in Ickes, the Fourth
Circuit was concerned with the “headaches” such a First Amendment “exception” would bring for
customs officers. Ickes, 393 F.3d at 506. What Plaintiffs seek as a remedy here, however, is
“simple—get a warrant,” Riley, 134 S. Ct. at 2495. D. 19 at 39. Finally, in Ickes, the Fourth
Circuit assured that the defendant’s warning that “any person carrying a laptop computer . . . on
an international flight would be subject to a search of the files on the computer hard drive” was
“far-fetched,” Ickes, 393 F.3d at 506-07. Plaintiffs point to the recent increase in border device
searches and the expanding storage and functioning capacities of electronic devices to suggest
otherwise. D. 7 ¶¶ 30, 38; D. 19 at 41.
Defendants also argue that this Court’s reasoning in House does not apply here. D. 15 at
29. They contend that “the facts of that case are easily distinguished,” where, unlike here, House
alleged he was targeted for investigation because of his specific expressive or associational
activities. Id.; see House 2012 WL 1038816, at *10-11. First, certain Plaintiffs allege facts prior
to their device searches that are not dissimilar to those in House: while Dupin’s phone was being
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searched, he was questioned “about his work as a journalist, including the names of the
organizations and specific individuals within those organizations for whom he had worked”; Gach
was questioned “about his work as an artist” prior to searching his phone; Kushkush was asked
about “his reporting activities”; and Merchant was questioned at secondary inspection about her
“religious affiliation” and her blog. D. 7 ¶¶ 87, 93, 99, 109, 133. One amicus argues that
journalists “are particularly vulnerable to targeted surveillance by means of suspicionless device
searches.” D. 26 at 13. As in House, such allegations are “pertinent” to Plaintiffs’ First
Amendment claim because they suggest that the officers’ “motivation to search and retain
[Plaintiffs’] devices” was to examine expressive or associational material. House, 2012 WL
1038816, at *10.
Second, the reasoning in House was not limited to targeting allegations alone. The Court
explained there that the seizure of House’s laptop and other devices gave the government
possession of confidential lists of organizational members and supporters, as well as emails and
documents detailing House’s organization’s inner workings. House, 2012 WL 1038816, at *12.
Such “[c]ompulsory disclosure . . . ‘can seriously infringe on privacy of association and belief
guaranteed by the first amendment,’ and can ‘have . . . a profound chilling effect.’” Id. (quoting
Buckley, 424 U.S. at 64; Perry v. Schwarzenegger, 591 F.3d 1126, 1135 (9th Cir. 2009)) (internal
citations omitted). Here, the CBP and ICE policies broadly permit suspicionless searches in
pursuit of “information,” ICE Pol. ¶¶ 5.2, 6.1; D. 18-2 ¶ 5.1.3, which could reasonably include
such searches within their ambit. In Ramsey, as Plaintiffs point out, D. 19 at 40, the Supreme
Court held that the statutory scheme permitting warrantless search of incoming international mail
did not violate the constitution because it applied only when there was reason to believe the
envelopes contained physical items and regulations “flatly prohibit[ed], under all circumstances,”
Case 1:17-cv-11730-DJC Document 34 Filed 05/09/18 Page 52 of 52
customs officials from reading correspondence without a warrant. Ramsey, 431 U.S. at 623. The
Court did not “decide whether, in the absence of the regulatory restrictions, speech would be
‘chilled,’ or, if it were, whether the appropriate response would be to apply the full panoply of
Fourth Amendment requirements.” Id. at 624 n.18. Here, there are no similar First Amendment
safeguards in the CBP and ICE electronic device policies.
In light of the particular concerns raised by digital devices like cell phones detailed above,
see Riley, 134 S. Ct. at 2489-91, and the limitless search authorizations in the CBP and ICE
policies, Plaintiffs have plausibly alleged that the government’s digital device search policies
substantially burden travelers’ First Amendment rights.15
The Court, therefore, declines to dismiss Plaintiffs’ First Amendment claim (Count II).
For the foregoing reasons, the Court DENIES Defendants’ motion to dismiss, D. 14.
/s/ Denise J. Casper
United States District Judge
The Court also notes that Plaintiffs’ Fourth and First Amendment claims are closely related. See
Janfeshan, 2017 WL 3972461, at *12 (declining to dismiss plaintiff’s Fourth Amendment claim
after denying dismissal of his Fifth Amendment claim because they were “integrally related,” and
discovery would “involve the same witnesses and w[ould] largely overlap”).
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