ST. LOUIS — The Knight First Amendment Institute at Columbia University and the Reporters Committee for Freedom of the Press filed an amicus brief earlier this week in the U.S. Court of Appeals for the Eighth Circuit arguing that warrantless searches of electronic devices at the border are unconstitutional. The amicus brief argues that these searches violate the First Amendment’s protection of freedoms of the press, speech, and association, as well as the Fourth Amendment’s protection against unreasonable searches and seizures. Accordingly, the Knight Institute and Reporters Committee are calling on the Eighth Circuit to reverse a lower court ruling that denied defendant Haitao Xiang’s motion to suppress evidence obtained from a warrantless border search of his electronic devices.

“For years, we have called on the federal government to abandon invasive surveillance practices at the border that violate travelers’ First and Fourth Amendment rights,” said Stephanie Krent, staff attorney at the Knight Institute. “These searches pose grave threats to free expression. The district court’s denial of the motion to suppress in this case sets a terrible precedent and the Eighth Circuit should step in to reverse it.”

As part of the Justice Department’s now-discontinued China Initiative, Xiang was stopped by Customs and Border Protection agents, who seized and searched several of his electronic devices without first obtaining a warrant. Xiang was subsequently indicted by a grand jury and charged with conspiracy to commit economic espionage to acquire information and technology for a foreign government. After he moved to suppress evidence obtained from CBP’s search, the district court concluded that CBP’s actions fell within the “border search” exception to the warrant requirement.

However, frequent complaints demonstrate this authority is often abused. The brief filed this week explains that electronic device searches are often used to scrutinize sensitive expression and associational content on devices, as demonstrated in news reports, documents obtained through transparency litigation, and journalists’ and travelers’ personal accounts. The Knight Institute and RCFP argue that these types of searches pose a grave threat to the First Amendment freedoms of the press, speech, and association, and to the Fourth Amendment’s protection against unreasonable searches and seizures. Because warrantless searches of devices at the border are unconstitutional, the evidence obtained from them should be suppressed.

“Too often, the government has misused its border authorities to target reporters for doing their jobs. We hope the Eighth Circuit recognizes the importance of this issue to the modern press and the need for strict guardrails to prevent federal overreach,” said Grayson Clary, Stanton Foundation National Security/Free Press Fellow at the Reporters Committee.

Read the brief here.

Read more about this case here.

Lawyers on the brief include Krent, Scott Wilkens, and Evan Welber Falcón of the Knight First Amendment Institute, and Bruce Brown, Katie Townsend, Gabriel Rottman, and Grayson Clary of the Reporters Committee for Freedom of the Press.

For more information: contact Adriana Lamirande, [email protected]