Cyberlaw Clinic weighs in on warrantless device searches at the US border

via Harvard Law Today

By Carolyn E. Schmitt

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 ’02, clinical professor and director of HIRC.

Mason Kortz ’14, 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.

We spoke with Kortz about the brief, working with the HIRC, and potential outcomes of the work.

Harvard Law Today: The Cyberlaw Clinic submitted an amicus brief on behalf of the Harvard Immigration and Refugee Clinical Program. How did that come about?

Mason Kortz: The Cyberlaw Clinic frequently provides legal services for groups and individuals at the Berkman Klein Center, Harvard Law School, and Harvard University. However, it’s rare for us to work directly with another clinic. In this case, we learned about the opportunity first and found our client, HIRC, second. Both the Cyberlaw Clinic and HIRC have worked on related issues in the past, including DHS’s policy of obtaining social media information from visa applicants. Although we had exchanged ideas in the past, we never formally worked together on this issue. So when we heard about the Alasaad case, we decided to be proactive about setting up a collaboration. Thankfully HIRC was completely on board with the idea!

The first question we had to address was how we would work together. HIRC is staffed by incredible lawyers, and one option would have been to jointly draft the brief. However, we ended up deciding on a more traditional attorney-client model, where the Cyberlaw Clinic was counsel for HIRC. This simplified the division of labor, because all the lawyering duties were on us and all of the client responsibilities were with HIRC. Reducing the number of lawyers involved also made it easier to keep the students at the center of the experience, as they could act as primary counsel and meet with lawyers from HIRC the way they would any other amicus client.

Overall, the experience was a great one for our students—and for me—and I’m looking forward to working with HIRC again. This project has also got us thinking about other ways to encourage cross-clinical collaboration. In the coming weeks, we’re going to be deploying some new tools that all clinicians will be able to access and later in the fall term we’re going to have a collaboration-focused clinical showcase. We hope this will promote more cross-clinical work in  the future.

HLT: What are some of the main points presented in the amicus brief?

Kortz: The brief supports the plaintiffs and their claim that the Constitution requires electronic device searches at the border to be supported by probable cause and a warrant—or at least some level of individualized suspicion. Because our client is an immigration law clinic, we wanted to make sure we achieved two goals: first, making an argument that was relevant to the rights and experiences of immigrants and immigrant communities and, second, providing a practical, rather than purely academic, argument in favor of personal privacy.

The argument we proposed to HIRC focused not on the Fourth Amendment right to be free from unreasonable search and seizures (which the plaintiffs’ counsel had already done a great job of briefing) but on the First Amendment. After some back and forth with HIRC, we settled on the argument that warrantless, suspicionless electronic device searches at the border chill freedom of speech and of association. The idea that government collection of personal information can discourage individuals from exercising their First Amendment rights is well established in academic literature. However, courts have sometimes struggled to make the connection between the Fourth and First Amendments. We ended up making two parallel arguments. We first argued that the chilling effect in this case was so strong that it constituted a First Amendment violation on its own. We then made an alternative argument that the court could take chilling effects into consideration when considering the unreasonableness of the searches in question under the Fourth Amendment.

To achieve our second goal of grounding the brief in practical effects, we dedicated a large part of the brief to arguing that the chilling effects of border searches were felt more acutely by immigrants, members of immigrant communities, and travelers who were in racial, ethnic, or religious minority groups. There is ample evidence that border patrol agents routinely target immigrants and minorities for searches. Any communications these individuals make through their laptop, tablet, or smartphone is potentially up for grabs by the government. This means members of immigrant and minority communities have to make some difficult choices: forgo using electronic communications (not really reasonable in this day and age), delete data off their device each time they travel (a time consuming and imperfect solution), or risk exposing not only their information, but the information of anyone they are in contact with. Our brief tries to bring these real-world consequences of unfettered border searches to the court’s attention.

HLT: Why should people be concerned about the chilling effects of the search process? Do they extend to journalists and activists also covering issues on the border?

Kortz: Chilling effects have a real impact on how people produce and consume information. For example, one study by Berkman Klein Center affiliate Jon Penney shows that belief that the government is watching is correlated with reduced engagement in “controversial” topics on Wikipedia. Other studies indicate that government surveillance of minority groups, such as Muslims and ethnic Arabs after 9/11, chills the speech of members of those groups. If we take the freedom to develop one’s own ideas seriously, we need to take chilling effects into account.

Chilling effects are especially concerning when searches are conducted by border patrol agents. Border agents have broad discretion on how to treat international travelers, from detaining them for hours to denying them entry to the country. The more power a federal agent has to infringe on a person’s liberty, the more rigorous the process for deploying that power should be. What we have right now is the opposite – a situation our brief describes as an attempt to create a “Constitution-free zone” at the border.

As for your second question, the unfortunate answer is yes. Our brief details multiple accounts of journalists who report on immigration issues, immigration lawyers, and immigrants’ rights advocates being subjected to invasive searches at the border. This means that border searches not only chill the personal speech and associational rights (which, to be clear, would be a sufficient basis for limiting the current unfettered search policy) but the political speech as well. While all forms of speech are protected under the First Amendment, political speech has often been treated as the first among equals – the cornerstone on which our system of governance rests. That people are subjected to retaliatory searches for speaking about immigration-related issues should raise all sorts of constitutional alarms with the court.

HLT: You supervised the students working on the brief. Could you speak to their contributions in bringing this brief to life?

Kortz: Working with our Cyberlaw Clinic students and interns was one of the best parts of the process. At the Cyberlaw Clinic, we try to keep students in the driver’s seat as much as possible. While  the initial conception of the brief came about by contacting lawyers in HIRC, the specific arguments were all researched, developed, and written by students. Students also took the lead with interviewing our contact in HIRC to make sure that we were representing their views correctly.

My role was to provide research suggestions, provide feedback on the structure and persuasiveness of the students’ writing, and do some light editing on drafts as the brief came together. Sometimes that’s a little difficult—I love writing briefs and it’s always tempting to get my hands dirty—but part of the clinical model is to allow students to develop their own research, writing, client contact, and project management skills through personal responsibility.

One of the trickier parts of this brief was transitioning between the spring student team and the summer intern team. The spring team – Andrew and Jubilee – did a lot of the formative thinking about the brief and the general flow of the arguments. They also conducted a huge amount of factual and legal research. The summer team—Priyanka and Will—had to figure out how to pick this material up and finish the brief. In some cases, this meant incorporating the existing work, but in others it meant going back to the research phase as the brief developed. Because of this, I encouraged the students to look at writing the brief as an iterative process, not a linear one. Rather than try to finish all the research, then do all the writing, I recommended that they plan for multiple rounds of research, writing, editing, and review. In the end, I think this method helped us put out a really great product.

HLT: What do you hope happens in the future in regards to this case?

Kortz: Personally, I am very much aligned with the position taken in HIRC’s amicus brief, and taken by the plaintiffs we supported. The government’s current position on electronic border searches – that “basic” searches require no suspicion and that “advanced” or “forensic” searches only require reasonable suspicion – would be completely untenable inside the U.S. border. The idea that border agents need these sweeping powers to prevent contraband from entering the country is just not supported by the evidence. The number of searches that turn up contraband seems to be exceedingly small, while the number of times that individuals legally entering the country are detained or turned away because of their religion, ethnicity, or political views is mounting.

Whatever the outcome of the case, there is a good chance that it will be appealed to the Supreme Court. If it does, the Cyberlaw Clinic – and hopefully HIRC – will be ready to make the case for protecting the freedoms of speech and association from government intrusion, especially when it comes to minority and immigrant populations.