Thread by @NicoletteGlazer

Ooof. 1st Cir finds that in civil action, "warrantless electronic device searches are essential to the border search exception's purpose of ensuring that the exec branch can adequately protect the border" and no prb cause needed to search ED at border ...
media.ca1.uscourts.gov/pdf.opinions/2…

Although after Riley, crim cases have gone this direction, this was a civil w USC & LPR plaintiffs and covered "basic" & "advanced" searches under the CBP search guidances.

But in this one, the 1st held that "Basic" CBP searches of ED may be performed without reasonable suspicion. Conclusion using the ol' "routine"/"non-routine" search distinction. THIS IS REALLY BAD!

"Electronic device searches do not fit neatly into other categories of property searches, but the bottom
line is that basic border searches of ED do not involve an intrusive search of a person, like the search [SCOTUS] held to be non-routine in Montoya de Hernandez."

Ct emphasized that coz "the CBP Policy only allows searches of data resident on the device" and that Ofcr cannot access encrypted or deleted files, this was decisive to make the distinction.

Ct rejected argument that routine border searches must be tied to uncovering contraband: Nope, ct said! "it follows that a search 4 evidence of either contraband or ** a cross-border crime** furthers the purposes of the border search exception to the warrant requirement." Yakes!

Well, we all know where that *cross-border crime* reference will lead CBP.

The decision extending warrantless border searches to "evidence" or both contraband & xborder crime creates an acknowledged circuit split w 9th in United States v. Cano (holding that the border search exception "is restricted in scope to searches for contraband").

Ct also rejected the 1st Amdmt challenge to the CBP policies: "Nor, as plaintiffs contend, does the presence of
expressive material on electronic devices 'trigger[] a warrant
requirement'."

Bottom line: this type of reasoning allows now CBP to search electronic devices of ANYONE with or without suspicion and to perform "advanced" searches in search "of evidence" of either contraband or border crimes.

Just to illustrate how broad this is already going: abt 10 days I had consult w B-2 who was grilled for 5+ hrs as to purpose of "visiting in a time of pandemic" & searched phone to find out if she had a US boyfriend. They let her in but not before dowld all data (per her)