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U.S. Supreme Court turns away digital device border search cases

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The U.S. Supreme Court is seen in Washington, U.S., June 14, 2021. REUTERS/Carlos Barria

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(Reuters) - The U.S. Supreme Court on Monday declined to take up three cases that relate to constitutional requirements for U.S. border searches of electronic devices like laptops and cell phones.

The high court's decision to steer clear of the cases comes as courts around the country have grappled in varying ways with how the 4th Amendment of the U.S. Constitution applies in the digital age.

In one of the cases, the American Civil Liberties Union and the Electronic Frontier Foundation asked the justices to review a 1st U.S. Circuit Court of Appeals decision in which a three-judge panel ruled in February that U.S. border agents don't need warrants to search travelers' smartphones and laptops at airports and other U.S. ports of entry.

The groups, which initially sued the Department of Homeland Security and its agencies in 2017 on behalf of 11 travelers, argued in their petition that the agencies' policies and practices allowing "suspicionless and warrantless searches" of electronic devices at the border violate the 4th Amendment because searches "must be conducted pursuant to a warrant based on probable cause, or at least an officer's determination of reasonable suspicion that the device contains digital contraband."

"Nobody should fear having border agents rummage through their most private information for no good reason," Nathan Freed Wessler, deputy director of the ACLU's speech, privacy and technology project, said in a statement Monday. He added that courts are in "wide disagreement" about the application of the 4th Amendment at the border, so "the Supreme Court will need to take this issue up soon."

In another case the Supreme Court rejected Monday, the U.S. Department of Justice sought review of a 9th U.S. Circuit Court of Appeals ruling. A panel for the federal appeals court in August 2019 reversed a lower court that had refused a bid to suppress evidence obtained through the warrantless border search of the cell phone of a man indicted for importing cocaine, vacating his conviction.

The Justice Department asked the high court to weigh in on whether the appeals court was wrong in finding that the scope of a search under the "border-search exception" to the 4th Amendment's warrant requirement is "limited solely to digital contraband on the device itself, and cannot include evidence of physical smuggling or other border-related crimes."

The Justice Department didn't immediately respond to a request for comment.

Harini Raghupathi of the Federal Defender of San Diego, who represented the man whose phone was searched, didn't immediately respond to a request for comment. The team, which included Jeffrey Fisher of Stanford Law School's Supreme Court Litigation Clinic, urged the high court not to hear the case, arguing that "any conflict regarding the constitutionality of the searches here is shallow and nascent."

The cases are: United States v. Cano, U.S. Supreme Court, No. 20-1043; Merchant v. Mayorkas, Secretary of Homeland Security, U.S. Supreme Court, No. 20-1505; Raymond Idemudia Aigbekaen v. United States, U.S. Supreme Court, No. 20-8057

For the United States: Elizabeth Prelogar of the U.S. Department of Justice

For Cano: Harini Raghupathi of Federal Defender of San Diego Inc

For Merchant: Esha Bhandari of the American Civil Liberties Union

For Aigbekaen: Pro se

Read More:

U.S. border agents do not need warrants to search digital devices, court rules

Sara Merken reports on privacy and data security, as well as the business of law, including legal innovation and key players in the legal services industry. Reach her at sara.merken@thomsonreuters.com

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