For years, border patrol agents have claimed the power to conduct forensic searches of travelers’ electronic devices without a warrant. They also claim the power to conduct so-called “basic searches”—which entail a border patrol agent manually examining the contents of the device—without any suspicion that the traveler has done something illegal.
Now, a group of U.S. residents are challenging the government’s interpretation of the law. With representation from the American Civil Liberties Union and the Electronic Frontier Foundation, these international travelers and journalists are arguing that border patrol agents should have to get a warrant to search their devices. The plaintiffs in the case, Alasaad v. McAleenan, met with partial success in the U.S. District Court for the District of Massachusetts and are now appealing to the First Circuit appellate court.
An amicus brief submitted by the Berkman Klein Center’s Cyberlaw Clinic explores the legal ramifications of this issue and suggests that these practices have a chilling effect on speech. The clinic submitted the brief on behalf of the Harvard Immigration and Refugee Clinical Program (HIRC), which directly represents individuals applying for U.S. asylum and related protections and advocates on immigration policy issues at the local, national, and international levels.
“We are so grateful for this important collaboration and the Cyberlaw Clinic’s thoughtful approach to highlighting the egregious First and Fourth Amendment rights’ violations that our clients and so many other immigrants have been subjected to at our country’s border, ” says Sabrineh Ardalan, clinical professor and director of HIRC.
Mason Kortz, a clinical instructor at HLS’ Cyberlaw Clinic, led the drafting of the brief. He supervised the research team: spring 2020 Cyberlaw Clinic students Andrew Mettry ’21 and Jubilee Cheung ’22 and summer 2020 Cyberlaw Clinic interns Priyanka Krishnamurthy and William Walker.