Amicus Curiae Brief — Zainab Merchant, et al., Petitioners v. Alejandro N. Mayorkas, Secretary of Homeland Security, et al.

No. 20-1505

IN THE

Supreme Court of the United States

________________

ZAINAB MERCHANT, ET AL.,

Petitioners,

v.

ALEJANDRO N. MAYORKAS,

SECRETARY OF HOMELAND SECURITY, ET AL.,

Respondents.

________________

On Petition for Writ of Certiorari to the

United States Court of Appeals for the First Circuit

________________

BRIEF OF CONSTITUTIONAL ACCOUNTABILITY

CENTER AS AMICUS CURIAE IN

SUPPORT OF PETITIONERS

________________

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

BRIAN R. FRAZELLE

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18th Street NW, Suite 501

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amicus Curiae

May 28, 2021

* Counsel of Record

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................

ii

INTEREST OF AMICUS CURIAE ......................

1

INTRODUCTION AND SUMMARY OF

ARGUMENT ......................................................

1

ARGUMENT .........................................................

5

I.

The Fourth Amendment Demands

Greater Protection for Personal Papers

than for Other Effects .................................

5

A. Searches of Personal Papers Were at

the Core of the Struggle that Produced

the Fourth Amendment ........................

5

B. Personal Papers Have Traditionally

Received Heightened Fourth

Amendment Protection .........................

10

Suspicionless Border Searches of Personal

Papers Stored on Electronic Devices Are

Constitutionally Unreasonable ..................

13

A. Reviewing the Contents of Digital

Files Is Unlike Combing Through a

Traveler’s Luggage ...............................

13

B. To Keep the Border Search Doctrine

Tethered to Its Historical Rationale,

Searches of Electronic Devices Must

Require Suspicion of Contraband ........

18

CONCLUSION .....................................................

22

II.

(i)

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Abel v. United States,

362 U.S. 217 (1960) ...............................

12

Andresen v. Maryland,

427 U.S. 463 (1976) ...............................

16

Arizona v. Gant,

556 U.S. 332 (2009) ...............................

14, 17

Boyd v. United States,

116 U.S. 616 (1886) ........................... 6, 8, 11, 12

Carpenter v. United States,

138 S. Ct. 2206 (2018) ...........................

18

Carroll v. United States,

267 U.S. 132 (1925) ...............................

12

City of Ontario v. Quon,

560 U.S. 746 (2010) ...............................

16

Commonwealth v. Dana,

43 Mass. 329 (1841) ..............................

10

Entick v. Carrington,

19 How. St. Tr. 1029 (C.P. 1765) ..........

7, 21

Fisher v. United States,

425 U.S. 391 (1976) ...............................

13, 16

Gouled v. United States,

255 U.S. 298 (1921) ............................ 12, 19, 20

Grumon v. Raymond,

1 Conn. 40 (1814) ..................................

10

iii

TABLE OF AUTHORITIES – cont’d

Page(s)

Kyllo v. United States,

533 U.S. 27 (2001) .................................

5

Marron v. United States,

275 U.S. 192 (1927) ...............................

20

Nixon v. Adm’r of Gen. Servs.,

433 U.S. 425 (1977) ...............................

16

Okla. Press Pub. Co. v. Walling,

327 U.S. 186 (1946) ...............................

12

Riley v. California,

573 U.S. 373 (2014) ............................... passim

Schmerber v. California,

384 U.S. 757 (1966) ...............................

12

Sinclair v. United States,

279 U.S. 263 (1929) ...............................

16

Stanford v. Texas,

379 U.S. 476 (1965) ...............................

5, 6

Stanley v. Georgia,

394 U.S. 557 (1969) ...............................

16

United States v. Flores-Montano,

541 U.S. 149 (2004) ...............................

3, 14

United States v. Kirschenblatt,

16 F.2d 202 (2d Cir. 1926) ....................

17

United States v. Montoya de Hernandez,

473 U.S. 531 (1985) ............................ 13, 14, 19

iv

TABLE OF AUTHORITIES – cont’d

Page(s)

United States v. Ramsey,

431 U.S. 606 (1977) ........................ 2, 10, 14, 15

United States v. Thirty-Seven (37)

Photographs,

402 U.S. 363 (1971) ...............................

4

Warden v. Hayden,

387 U.S. 294 (1967) ....................... 12, 13, 19, 20

Weeks v. United States,

232 U.S. 383 (1914) ...............................

10

Wheeler v. United States,

226 U.S. 478 (1913) ...............................

12

Wilkes v. Wood,

19 How. St. Tr. 1153 (C.P. 1763) ..........

6, 7

Wilson v. United States,

221 U.S. 361 (1911) ...............................

12

Statutes and Constitutional Provisions

U.S. Const. amend. IV ..............................

21

Act of July 4, 1789, 1 Stat. 24 ..................

10, 11

Act of July 31, 1789, 1 Stat. 29 ............. 10, 11, 20

Act of Aug. 4, 1790, 1 Stat. 145 ...............

11

Act of Feb. 4, 1815, 3 Stat. 195 ................

20

Act of Mar. 3, 1863, 12 Stat. 737 .............

11

v

TABLE OF AUTHORITIES – cont’d

Page(s)

Mass. Const. art. XIV (1780) ...................

9

N.H. Const. art. XIX (1784) .....................

9

Pa. Const. art. IX (1790) ..........................

9

Vt. Const. ch. I, art. XI (1777)..................

9

Books, Articles, and Other Authorities

18th Century Documents: 1700–1799,

Yale Law School Lillian Goldman Law

Library ...................................................

9

Craig M. Bradley, Constitutional

Protection for Private Papers, 16 Harv.

C.R.-C.L. L. Rev. 461 (1981) .................

2, 12

William J. Cuddihy, The Fourth

Amendment: Origins and Original

Meaning 602–1791 (2009) .....................

8

Thomas Y. Davies, Recovering the

Original Fourth Amendment, 98 Mich.

L. Rev. 547 (1999) .................................

11

Donald A. Dripps, “Dearest Property”:

Digital Evidence and the History of

Private “Papers” as Special Objects of

Search and Seizure, 103 J. Crim. L. &

Criminology 49 (2013) ........................... passim

Father of Candor, A Letter Concerning

Libels, Warrants and the Seizure of

Papers (5th ed. 1765) ............................

7, 8

vi

TABLE OF AUTHORITIES – cont’d

Page(s)

Father of Candor, A Postscript to the

Letter on Libels, Warrants, &c.

(2d ed. 1765) ..........................................

17

William Waller Hening, The New

Virginia Justice (1795) ..........................

8

James A. McKenna, The Constitutional

Protection of Private Papers: The Role

of a Hierarchical Fourth Amendment,

53 Ind. L.J. 55 (1977) ............................

3, 16

James Otis, Against Writs of Assistance

(1761) .....................................................

21

16 Parl. Hist. Eng. 209 (1766) .................

8

Eric Schnapper, Unreasonable Searches

and Seizures of Papers, 71 Va. L. Rev.

869 (1985) .............................................. passim

Steven H. Shiffrin, The Search and

Seizure of Private Papers: Fourth and

Fifth Amendment Considerations,

6 Loy. L.A. L. Rev. 274 (1973) ........... 12, 13, 19

Zuinglius, For the Pennsylvania Gazette,

Pa. Gazette, Dec. 20, 1780 ....................

9

1

INTEREST OF AMICUS CURIAE1

Constitutional Accountability Center (CAC) is a

think tank, public interest law firm, and action center

dedicated to fulfilling the progressive promise of the

Constitution’s text and history. CAC works in our

courts, through our government, and with legal scholars to improve understanding of the Constitution and

preserve the rights and freedoms it guarantees. CAC

has a strong interest in ensuring that the Constitution

applies as robustly as its text and history require and

accordingly has an interest in this case.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Whenever an American takes an international trip,

federal agents have free rein to pore through the photographs, videos, emails, text messages, notes, and

other private contents of his or her electronic devices.

Border agents do not need a warrant, probable cause,

or even reasonable suspicion that a device contains unlawful material. Instead, agents may search and seize

the devices of whomever they wish while looking for

evidence of past or future violations of the laws their

agencies enforce.

That is the holding of the decision below. And because this state of affairs is intolerable under the

Fourth Amendment, this Court should correct it.

1 Counsel for all parties received notice at least 10 days prior to

the due date of amicus’s intention to file this brief; all parties have

consented to its filing. Under Rule 37.6 of the Rules of this Court,

amicus states that no counsel for a party authored this brief in

whole or in part, and no counsel or party made a monetary contribution intended to fund the preparation or submission of this

brief. No person other than amicus or its counsel made a monetary contribution to its preparation or submission.

2

The court below rested its sweeping holding on the

border search doctrine, a “historically recognized exception to the Fourth Amendment’s general principle

that a warrant be obtained.” United States v. Ramsey,

431 U.S. 606, 621 (1977). Yet the border search doctrine has always been tied to its historical rationale,

the need “to prevent prohibited articles from entry,” id.

at 619, and has always been further constrained by the

physical realities that limit the items carried by travelers. The decision below expands that doctrine to permit something vastly different: trawling through the

contents of modern digital devices for the information

they contain, allowing border agents to inspect whatever documents, images, and recordings they please.

Crucially, however, there is no historical tradition

of empowering border agents to examine the personal

papers of international travelers without a warrant,

much less to methodically scrutinize the massive number of papers that contemporary travelers carry on

their electronic devices. By exploiting border searches

to rummage at will through the records stored on those

devices, the federal government is attempting to secure a power the Fourth Amendment was designed to

foreclose—the power to indiscriminately search and

seize the “papers” of the people.

“Protection of private papers from governmental

search and seizure is a principle that was recognized

in England well before our Constitution was framed,”

Craig M. Bradley, Constitutional Protection for Private

Papers, 16 Harv. C.R.-C.L. L. Rev. 461, 463 (1981), and

the Founders’ commitment to the security of personal

papers helped motivate the Fourth Amendment’s

adoption. Together with a rejection of “general warrants,” safeguarding private papers was one of the

twin pillars of the search and seizure doctrine that

emerged in eighteenth-century English common law—

3

a development celebrated by the American colonists

who were being subjected to oppressive searches by

British authorities. One of the chief aims of the Fourth

Amendment was to enshrine in America’s founding

charter these common law protections, which safeguarded “two independent rights: a prohibition

against general warrants and a limitation on seizures

of papers.” Eric Schnapper, Unreasonable Searches

and Seizures of Papers, 71 Va. L. Rev. 869, 912 (1985).

Accordingly, the Fourth Amendment specifically

lists “papers” as protected from unreasonable search

and seizure—a choice reflecting the importance of papers as distinct from the “effects” covered separately

by the text. In short, “the Founders understood the

seizure of papers to be an outrageous abuse distinct

from general warrants” and “regarded papers as deserving greater protection than other effects.” Donald

A. Dripps, “Dearest Property”: Digital Evidence and the

History of Private “Papers” as Special Objects of Search

and Seizure, 103 J. Crim. L. & Criminology 49, 52, 99

(2013).

This Court too has long recognized that personal

papers enjoy special protection under the Fourth

Amendment. Indeed, “more than a dozen decisions

over the course of a century reiterated that an individual’s private papers were absolutely exempt from seizure.” Schnapper, supra, at 869-70. Although this

Court eventually tempered that absolute rule, it preserved the underlying principle that “private papers

should be accorded special solicitude in fourth amendment protection.” James A. McKenna, The Constitutional Protection of Private Papers: The Role of a Hierarchical Fourth Amendment, 53 Ind. L.J. 55, 70 (1977).

Thus, whenever a court must assess the reasonableness of a search or gauge its intrusion on “dignity and

privacy interests,” United States v. Flores-Montano,

4

541 U.S. 149, 152 (2004), fidelity to the Fourth Amendment demands greater protection for personal papers

than for other objects.

Today, personal papers increasingly take the form

of digital files. Electronic devices now hold “in digital

form many sensitive records previously found in the

home.” Riley v. California, 573 U.S. 373, 396-97

(2014). Indeed, a modern electronic device is a library

of one’s digital papers—a vast archive of private writings and personal correspondence; financial, medical,

and educational records; personal photographs, videos, and voice recordings; and other materials that include “detailed information about all aspects of a person’s life.” Id. at 396. Consistent with the Fourth

Amendment’s special regard for private papers, the

authority to conduct routine border searches cannot

justify unfettered scrutiny into the contents of every

international traveler’s electronic devices.

Instead, “privacy-related concerns are weighty

enough” to require a warrant for searches of electronic

devices at the border, “notwithstanding the diminished expectations of privacy” there. Id. at 392 (quotation marks omitted). At a minimum, these searches

must require reasonable suspicion that a device contains digital contraband. Such a requirement is not a

revival of the discredited “mere evidence” rule, as the

court below concluded. Rather, it ensures that the border search doctrine remains tethered to its historical

purpose: “excluding illegal articles from the country.”

United States v. Thirty-Seven (37) Photographs, 402

U.S. 363, 376 (1971).

This Court’s intervention is needed to clarify that

invading someone’s digital library for the information

it contains is fundamentally unlike combing through a

suitcase for contraband. Petitioners’ case, which does

not arise from a suppression motion in a criminal

5

prosecution, offers a rare opportunity to address that

vital issue in a context resembling the majority of the

tens of thousands of warrantless electronic device

searches that the government performs each year.

This Court should take that opportunity and grant the

petition for a writ of certiorari.

ARGUMENT

I. The Fourth Amendment Demands Greater

Protection for Personal Papers than for

Other Effects.

A. Searches of Personal Papers Were at the

Core of the Struggle that Produced the

Fourth Amendment.

The Fourth Amendment, which “is to be construed

in the light of what was deemed an unreasonable

search and seizure when it was adopted,” Kyllo v.

United States, 533 U.S. 27, 40 (2001), “was the founding generation’s response to the reviled ‘general warrants’ and ‘writs of assistance’ of the colonial era,

which allowed British officers to rummage through

homes in an unrestrained search for evidence of criminal activity,” Riley, 573 U.S. at 403. Its terms were

meant to embody the principles established in a series

of well-known judicial decisions that involved “efforts

by the English government to apprehend the authors

and publishers of allegedly libelous publications.”

Schnapper, supra, at 875-76.

Two of those decisions stand out: “the landmark

cases of Wilkes v. Wood and Entick v. Carrington,” in

which “the battle for individual liberty and privacy

was finally won.” Stanford v. Texas, 379 U.S. 476, 483

(1965). Those cases addressed “two distinct issues:

first, the validity of general warrants, and second, the

absolute immunity of certain property from search or

seizure.” Schnapper, supra, at 876. Both decisions

6

helped establish the privileged status of private papers

under the common law.

In 1763, an issue of John Wilkes’s radical newspaper The North Briton was deemed seditious libel by the

secretary of state, who issued a warrant to “seize and

arrest” everyone connected with it, “together with

their papers.” Dripps, supra, at 62. Under this general warrant, “Wilkes’ house was searched, and his papers were indiscriminately seized.” Boyd v. United

States, 116 U.S. 616, 626 (1886). Suing the perpetrators, Wilkes protested that his “papers had undergone

the inspection of very improper persons to examine his

private concerns,” and that “of all offences . . . a seizure

of papers was the least capable of reparation; that, for

other offences, an acknowledgement might make

amends; but that for the promulgation of our most private concerns, affairs of the most secret personal nature, no reparation whatsoever could be made.” Wilkes

v. Wood, 19 How. St. Tr. 1153, 1166, 1154 (C.P. 1763).

Upholding the verdict in Wilkes’s favor, the court declared the general warrant authorizing the searches

“contrary to the fundamental principles of the constitution.” Id. at 1167.

Wilkes’s fellow publisher John Entick endured similar treatment and also sued the culprits, leading to a

decision that was a “wellspring of the rights now protected by the Fourth Amendment.” Stanford, 379 U.S.

at 484. Unlike in Wilkes, the warrant at issue “named

Entick as the suspect whose possessions were to be

seized.” Schnapper, supra, at 881. But Entick maintained that no warrant could authorize seizing “all

[his] papers and books” without conviction of a crime,

objecting that the defendants “read over, pried into

and examined all [his] private papers, books, etc. . . .

whereby [his] secret affairs . . . became wrongfully

7

discovered.” Entick v. Carrington, 19 How. St. Tr.

1029, 1030, 1064 (C.P. 1765).

Siding with Entick, the court held that this power

to search and seize “all the party’s papers” was unknown to English common law. Id. at 1064. As the

court explained:

Papers are the owner’s goods and chattels: they

are his dearest property; and are so far from enduring a seizure, that they will hardly bear an

inspection; and though the eye cannot by the

laws of England be guilty of a trespass, yet

where private papers are removed . . . the secret

nature of those goods will be an aggravation of

the trespass.

Id. at 1066. Thus, “the Entick court invalidated the

seizure not because the court regarded the underlying

warrant as a general warrant, but because the seizure

violated the distinct prohibition on seizures of papers.”

Schnapper, supra, at 874. Indeed, the State Trials reporter captioned Wilkes as “The Case of General Warrants” and Entick as “The Case of Seizure of Papers.”

19 How. St. Tr. at 1029, 1153. Its annotation described

“the chief point adjudged” in Entick to be that “a warrant to search for and seize the papers of the accused,

in the case of a seditious libel, is contrary to law.” Id.

at 1029.

The government’s actions also ignited a fierce public debate, in which critics “condemned the distinct but

related evils of general warrants and warrants for papers.” Dripps, supra, at 61. The most widely circulated pamphlet argued both that general warrants

were illegal and that “a Particular, or any Warrant, for

seizing the papers, is likewise, as the law now stands,

good in no case whatever.” Father of Candor, A Letter

Concerning Libels, Warrants and the Seizure of Papers

8

77 (5th ed. 1765). Such warrants, it was said, would

subject all “correspondencies, friendships, papers and

studies” to “the will and pleasure” of the authorities.

Id. at 59. The debate subsided only after the House of

Commons issued resolutions pronouncing general

warrants unlawful and declaring, separately, that “the

seizing or taking away the papers, of . . . the supposed

author, printer, or publisher, of a libel, is illegal.” 16

Parl. Hist. Eng. 209 (1766).

These developments were widely covered by newspapers in the colonies, where the American reaction

“was intense, prolonged, and overwhelmingly sympathetic.” William J. Cuddihy, The Fourth Amendment:

Origins and Original Meaning 602–1791, at 538

(2009). Entick’s case was “undoubtedly familiar” to

“every American statesman,” and its propositions

“were in the minds of those who framed the fourth

amendment to the constitution, and were considered

as sufficiently explanatory of what was meant by unreasonable searches and seizures.” Boyd, 116 U.S. at

626-27.

After independence, protections against the search

and seizure of papers were woven into the fabric of

American law. Because the states generally adopted

English common law, “any judge or justice of the peace

considering issuing a warrant to seize papers who

looked up the law would learn that, under Entick, such

a warrant was unknown to the common law.”

Dripps, supra, at 75. Among the legal manuals published in the Founding era, “[n]one suggest[ed] common law authority to issue warrants for papers,” and

some expressly prohibited them. Id. at 76; see, e.g.,

William Waller Hening, The New Virginia Justice 404

(1795) (discussing the rule of Entick separately from

“the doctrine of general warrants”).

9

Indeed, only one known attempt was made to authorize the search and seizure of papers during this

period—a Pennsylvania bill that failed after it was attacked in the press as “contrary to common law.”

Dripps, supra, at 78; see Zuinglius, For the Pennsylvania Gazette, Pa. Gazette, Dec. 20, 1780 (“What punishment can be more dreadful to one of a delicate and sensible mind, than to have his papers laid open to those

who may come with a warrant to inspect them. . . . Letters of business, letters of friendship, notes, memorandums, containing the most delicate particulars, are all

laid open to view.”). Reflecting these sentiments, the

constitutions of four states expressly protected security in one’s “papers.” Mass. Const. art. XIV (1780);

N.H. Const. art. XIX (1784); Pa. Const. art. IX, § 8

(1790); Vt. Const. ch. I, art. XI (1777).

When the Constitutional Convention later sent its

proposal for a new federal charter to the states for ratification, many feared that this powerful national government would erode the common law protections inherited from England. Antifederalists thus “extracted

promises that the Constitution would be amended to

include a bill of rights,” including “protections against

unreasonable searches and seizures.” Schnapper, supra, at 914-15. The ratification messages of the key

holdout states Virginia, New York, and North Carolina

all included the security of “papers” among the protections sought. See 18th Century Documents: 1700–

1799, Yale Law School Lillian Goldman Law Library,

https://avalon.law.yale.edu/subject_menus/18th.asp

(last visited May 27, 2021) (providing access to the

state ratification messages).

Ultimately, as this Court has explained, the Fourth

Amendment reflected the Founders’ decision to

“secur[e] to the American people . . . those safeguards

which had grown up in England to protect the people

10

from . . . invasions of the home and privacy of the citizens, and the seizure of their private papers.” Weeks

v. United States, 232 U.S. 383, 390 (1914). The singling out of “papers” in the Fourth Amendment’s text

was no accident: safeguarding personal papers was an

essential part of what the Founders sought to achieve.

B. Personal Papers Have Traditionally

Received Heightened Fourth

Amendment Protection.

In the antebellum period, this Court rendered few

Fourth Amendment decisions, but state decisions reveal the continued acceptance of Entick, see Grumon v.

Raymond, 1 Conn. 40, 45 (1814), and its protection for

personal papers, see Commonwealth v. Dana, 43 Mass.

329, 334 (1841) (“the right to search for and seize private papers is unknown to the common law”). Significantly, too, early Congresses never authorized the

search or seizure of private papers—at the border or

anywhere else.

The historical foundation for the border search doctrine is an early statute that permitted customs officers “to enter any ship or vessel, in which they shall

have reason to suspect any goods, wares or merchandise subject to duty shall be concealed,” and to search

for those items without a warrant. Act of July 31,

1789, § 24, 1 Stat. 29, 43. The enactment of this statute by the same Congress that proposed the Fourth

Amendment is the primary evidence of a traditional

border exception to the warrant requirement. See

Ramsey, 431 U.S. at 616. But critically, this statute

did not permit the seizure of papers—only “goods,

wares or merchandise,” a formulation repeated sixtythree times. And the earlier legislation specifying

which “goods, wares and merchandise” were subject to

import duties included no written materials among the

dozens of items listed. See Act of July 4, 1789, § 1, 1

11

Stat. 24; cf. id. at 26 (“all blank books” (emphasis

added)). A later statute permitted officers to inspect

ships’ manifests but no other records or papers. See

Act of Aug. 4, 1790, § 31, 1 Stat. 145, 164.

There is no historical tradition, therefore, of empowering customs agents to examine the personal papers of international travelers—only a tradition of

searching for and seizing impersonal goods lacking the

privacy interests that one’s papers were recognized to

implicate. And agents could employ that power only

when they had “reason to suspect” that prohibited

items were concealed onboard a ship. Act of July 31,

1789, § 24, 1 Stat. at 43.

Not until funding for the Civil War was imperiled

by a widespread evasion of duties did Congress enact

“[t]he first federal statute authorizing warrants to

seize papers.” Dripps, supra, at 85; see Act of Mar. 3,

1863, ch. 76, 12 Stat. 737. And it did not last. As modified, that law authorized courts to order the production of “any business book, invoice, or paper” that

might “tend to prove any allegation made by the

United States” in forfeiture proceedings. Boyd, 116

U.S. at 619-20 (quoting statute). But this Court struck

the measure down, holding that “compelled seizures of

papers were categorically illegal.” Thomas Y. Davies,

Recovering the Original Fourth Amendment, 98 Mich.

L. Rev. 547, 728 n.514 (1999). Drawing heavily on Entick, this Court described the “settled” holding of that

decision as “on[e] of the landmarks of English liberty

. . . . welcomed and applauded by the lovers of liberty

in the colonies.” Boyd, 116 U.S. at 626. Under Entick,

and thus under the Fourth Amendment, the government could seek items that were “liable to duties” or

“unlawful” to possess, but such efforts were “totally

different things from a search for and seizure of a

12

man’s private books and papers for the purpose of obtaining information therein contained.” Id. at 623-24.

For decades, Boyd remained “[t]he leading case” on

the Fourth Amendment, Carroll v. United States, 267

U.S. 132, 147 (1925), and so private papers continued

to be largely free from search and seizure. See Bradley, supra, at 461.2

Boyd’s holding was later broadened to shield all

private property sought by the government for its evidentiary value alone. See Gouled v. United States, 255

U.S. 298 (1921). Under this new rule, private papers

became simply an “example” of the kinds of property

that could not be seized “merely for use as evidence.”

Abel v. United States, 362 U.S. 217, 234 (1960).

When this Court eventually jettisoned that “mere

evidence” rule, it reconfirmed the distinction between

private papers and other objects of search—loosening

the Fourth Amendment’s standards only for the latter.

In Schmerber v. California, 384 U.S. 757 (1966), the

Court approved a blood-alcohol search carried out for

evidence of intoxication, but it reached that result only

by distinguishing cases that shielded “private papers.”

Id. at 768. And in Warden v. Hayden, 387 U.S. 294

(1967), which definitively rejected the mere evidence

rule, this Court again “was careful . . . to confine its

holding to non-testimonial items.” Steven H. Shiffrin,

The Search and Seizure of Private Papers: Fourth and

Fifth Amendment Considerations, 6 Loy. L.A. L. Rev.

2 During that period, this Court approved the use of subpoenas

for “corporate records,” Wheeler v. United States, 226 U.S. 478,

490 (1913), but distinguished such requests from “compulsory

production of [one’s] private books and papers,” which were

“[u]ndoubtedly” protected, Wilson v. United States, 221 U.S. 361,

377 (1911); see Okla. Press Pub. Co. v. Walling, 327 U.S. 186, 208

(1946) (“corporate or other business records”).

13

274, 289 (1973). Emphasizing that the articles of

clothing at issue in Hayden were not “communicative”

in nature, this Court left open whether there are items

“whose very nature precludes them from being the object of a reasonable search and seizure.” 387 U.S. at

302-03; see Shiffrin, supra, at 287 (“The actual holding

of Warden was that a man’s non-documentary effects

could be seized during a lawful search to be used as

evidence.”); see also, e.g., Fisher v. United States, 425

U.S. 391, 401 n.7 (1976) (“Special problems of privacy

which might be presented by subpoena of a personal

diary are not involved here.” (citation omitted)).

In short, constitutional text, history, and precedent

all demand heightened protection for personal papers

whenever courts are called upon to assess the reasonableness or intrusiveness of a search. This Court has

repeatedly highlighted the special protection that private papers enjoy under the Fourth Amendment and

has acknowledged the unique harms that occur when

their contents are exposed to the government. Those

principles hold true whether papers take the form of

physical documents or digital files.

II. Suspicionless Border Searches of Personal

Papers Stored on Electronic Devices Are

Constitutionally Unreasonable.

A. Reviewing the Contents of Digital Files

Is Unlike Combing Through a Traveler’s

Luggage.

Although “the Fourth Amendment’s balance of reasonableness is qualitatively different at the international border,” this Court has allowed suspicionless examinations of persons and property at the border only

within the scope of “routine” border searches. United

States v. Montoya de Hernandez, 473 U.S. 531, 541

(1985). Whatever else a “routine” border search may

14

cover, it cannot include inspecting a person’s entire library of digital papers. That broad power would “untether” the border search doctrine “from the justifications underlying” it and create “a serious and recurring threat to the privacy of countless individuals.”

Arizona v. Gant, 556 U.S. 332, 344-45, 343 (2009).

While this Court has identified some types of

“nonroutine” border searches, see, e.g., Montoya de

Hernandez, 473 U.S. at 541 & n.4, it has never implied

that there are no others. Nor has this Court said that

searches can unreasonably intrude on “dignity and privacy,” Flores-Montano, 541 U.S. at 152, only when

they involve “an intrusive search of a person,” Pet.

App. 18a, as the court below suggested.

Most critically, this Court has never held that the

border search exception permits government officers

to examine the contents of personal papers. On the

contrary, when this Court sanctioned the warrantless

opening of internationally mailed envelopes, it repeatedly stressed that its holding would not allow officials

to read the contents of letters, but only to search for

drugs or other contraband hidden inside the envelopes.

As this Court noted, the statute authorizing these

searches required “reasonable cause” to believe that

customs laws were being violated “prior to the opening

of envelopes,” and “postal regulations flatly prohibit[ed], under all circumstances, the reading of correspondence absent a search warrant.” Ramsey, 431

U.S. at 623. That fact, reiterated numerous times,3

3 See Ramsey, 431 U.S. at 624 (“envelopes are opened at the

border only when the customs officers have reason to believe they

contain other than correspondence, while the reading of any correspondence inside the envelopes is forbidden”); id. at 612 n.8

(denying that “the door will be open to the wholesale, secret examination of all incoming international letter mail” because “the

reading of letters is totally interdicted by regulation”); id. at 625

15

was key: This Court reserved judgment on whether the

“full panoply of Fourth Amendment requirements”

would be needed “in the absence of the regulatory restrictions.” Id. at 624 n.18.

Even if border agents were allowed to read the limited number of physical papers carried by an international traveler—a question this Court has not answered—that would merely resemble police officers’

ability to examine an arrestee’s “billfold and address

book,” “wallet,” or “purse.” Riley, 573 U.S. at 392-93.

The intrusion on privacy would be cabined by the

“physical realities” limiting the range of paper documents that travelers carry. Id. at 393. But in light of

the “vast quantities of personal information” stored on

electronic devices, this Court has repudiated “mechanical application” of such traditional exemptions from

the warrant requirement to the digital world. Id. at

386. The possibility of finding some bank statements

in a piece of luggage “does not justify a search of every

bank statement from the last five years,” and “the fact

that a search in the pre-digital era could have turned

up a photograph or two . . . does not justify a search of

thousands of photos in a digital gallery.” Id. at 400.

Simply put, unfettered power to browse through a

person’s entire library of digital papers—not to mention seize that library indefinitely and perform sophisticated computer searches of its contents—cannot be

crammed within the traditional border search exception. Nor can it be reconciled with the Fourth Amendment’s special regard for personal papers.

& n.* (Powell, J., concurring) (noting that “postal regulations

flatly prohibit the reading of ‘any correspondence,’” and joining

the holding “[o]n the understanding that the precedential effect

of today’s decision does not go beyond the validity of mail searches

. . . pursuant to the statute”).

16

As explained above, see supra Part I, this Court has

recognized that an individual’s “right of personal security” demands “exemption of his private affairs, books,

and papers from the inspection and scrutiny of others.”

Sinclair v. United States, 279 U.S. 263, 292-93 (1929);

cf. Stanley v. Georgia, 394 U.S. 557, 565 (1969) (upholding a person’s “right to be free from state inquiry

into the contents of his library”). After all, “[a]n individual’s books and papers are generally little more

than an extension of his person,” Fisher, 425 U.S. at

420 (Brennan, J., concurring in the judgment),

whether in physical or digital form, see City of Ontario

v. Quon, 560 U.S. 746, 760 (2010) (“Cell phone and text

message communications are so pervasive that some

persons may consider them to be essential means or

necessary instruments for self-expression . . . .”). That

is certainly true for “purely private materials, such as

diaries, recordings of family conversations, [and] private correspondence,” which represent far more than

mere “property.” Nixon v. Adm’r of Gen. Servs., 433

U.S. 425, 484 (1977) (White, J., concurring).

Moreover, “there are grave dangers inherent in . . .

a search and seizure of a person’s papers that are not

necessarily present in [a] search for physical objects

whose relevance is more easily ascertainable.” Andresen v. Maryland, 427 U.S. 463, 482 n.11 (1976). Because papers must be examined to be identified, the

authority to hunt for a particular type of record entails

a license to review all the records stored in the same

place, making it “certain” that “innocuous documents

will be examined . . . in order to determine whether

they are, in fact, among those papers authorized to be

seized.” Id. Inevitably, therefore, a search of papers

“partakes of the same generality characteristic of the

sweeping exploratory searches at which the fourth

amendment was directed.” McKenna, supra, at 83.

17

Such dangers are present whenever government officers may comb through papers in a suitcase or bag, but

they are magnified incalculably when those officers

gain access to a person’s entire digital library.

These concerns date back to the Fourth Amendment’s origins. In the Wilkes controversy, critics “focused on the large volume of unrelated papers government officials read in their search for documents pertaining to North Briton No. 45.” Schnapper, supra, at

917. Opposition to seizing papers was propelled by

“the belief that any search of papers, even for a specific

criminal item, was a general search.” Dripps, supra,

at 104. An unlimited power to search digital papers at

the border, therefore, cannot be sanctioned simply because some papers may shed light on “border-related

crimes.” Pet. App. 19a. As one opponent of the Wilkes

searches put it: “Every private paper, according to this

doctrine, might be scrutinized by the examiner; for,

without doing so, how could he determine whether

something could not be proved from thence?” Father

of Candor, A Postscript to the Letter on Libels, Warrants, &c. 18 (2d ed. 1765).

The “unbridled discretion to rummage at will”

through a person’s digital library thus “implicates the

central concern underlying the Fourth Amendment.”

Gant, 556 U.S. at 345. It is “a totally different thing to

search a man’s pockets and use against him what they

contain, from ransacking his house for everything

which may incriminate him.” Riley, 573 U.S. at 396

(quoting United States v. Kirschenblatt, 16 F.2d 202,

203 (2d Cir. 1926)).

A tipping point is crossed, therefore, when the traditional power to inspect a limited number of physical

items at the border—a power that, again, this Court

has never extended to the contents of private papers—

is broadened to sweep in all of the sensitive files stored

18

on modern electronic devices. Permitting that expansion requires ignoring the very “seismic shifts in digital technology,” Carpenter v. United States, 138 S. Ct.

2206, 2219 (2018), that the government is exploiting

through its searches of these devices. The imperatives

underlying the border search doctrine, significant as

they are, cannot justify giving federal agents license to

rummage at will through the digital library of every

person who crosses the border.

B. To Keep the Border Search Doctrine

Tethered to Its Historical Rationale,

Searches of Electronic Devices Must

Require Suspicion of Contraband.

For all the reasons discussed above, the court below

erred in stretching the border search doctrine to encompass the review of personal papers stored on electronic devices. The court compounded its error by expanding the purposes for which agents may conduct

these warrantless searches. Instead of limiting border

searches to their traditional function of discovering

prohibited items, the court permitted border officials

to access travelers’ digital libraries to search more generally for “evidence of activity in violation of the laws

enforced or administered” by their agencies. Pet. App.

22a. And as the government admits, the “wide range

of federal laws” these agencies enforce includes

measures concerning “financial and trade-related” offenses, “intellectual-property rights,” “food and drug

safety,” “agriculture,” and “vehicle-emissions standards,” among other “various areas.” BIO 2. In other

words, the decision below allows government agents to

search travelers’ digital papers—without a warrant or

reasonable suspicion—for evidence of any offense that

relates in some conceivable way to the border.

Under the Fourth Amendment, however, these

searches must, at a minimum, be based on a

19

reasonable belief that a particular device contains digital contraband. The court below thought that limiting

the border search doctrine in this way would revive the

discredited “mere evidence” rule. See Pet. App. 22a

n.13. But that is wrong: the contours and underpinnings of these two rules are entirely different.

As recounted above, in the twentieth century this

Court transformed the Boyd decision—which had emphasized the unique status of private papers—into a

broader rule that focused more exclusively on ownership concepts. “Whereas Boyd would absolutely prohibit the seizure of private papers,” the “emphasis

shifted” in Gouled v. United States, which “refused to

place papers in a special category, holding rather that

seizure of any of an individual’s property merely for evidentiary purposes was constitutionally prohibited.”

Shiffrin, supra, at 278-79 (citing Gouled, 255 U.S. 298

(1921)). Ultimately, however, this “requirement of a

governmental property interest in the item to be

seized,” id. at 286, proved unworkable and generated

specious distinctions between “items of evidential

value only” and “the instrumentalities and means by

which a crime is committed,” Hayden, 387 U.S. at 300,

296. In repudiating that rule, this Court rejected

“[t]he premise that property interests control the right

of the Government to search and seize.” Id. at 304.

Restricting warrantless border searches to their

traditional function of discovering prohibited items

has nothing to do with the mere evidence rule. Instead, this important limit arises from the rationale

for the border search doctrine itself—the need “to regulate the collection of duties and to prevent the introduction of contraband into this country.” Montoya de

Hernandez, 473 U.S. at 537. This limit ensures that

the doctrine remains tethered to its justifying rationale. See Riley, 573 U.S. at 386.

20

After all, the 1789 customs statute on which the

border search doctrine rests did not permit officers to

search ships for “evidence of . . . border-related crime.”

Pet. App. 21a. Rather, it allowed officers to search only

those ships “in which they shall have reason to suspect

any goods, wares or merchandise subject to duty shall

be concealed.” Act of July 31, 1789, § 24, 1 Stat. at 43.

Congress imposed the same restriction when it authorized warrantless customs inspections at land borders.

See Act of Feb. 4, 1815, ch. 31, § 2, 3 Stat. 195, 195

(permitting an officer to search persons and vehicles

“on which he shall suspect there are any goods, wares,

or merchandise, which are subject to duty, or which

shall have been introduced into the United States in

any manner contrary to law”). Enforcing these traditional limits on the discretionary search power of border agents is simply being faithful to the border search

doctrine itself.

Moreover, because the mere evidence rule was

rooted in different concepts, its scope was entirely different. For instance, the mere evidence rule prohibited seizing certain types of items under any circumstances. See Gouled, 255 U.S. at 309. But enforcing

the traditional limits of the border search doctrine

simply requires officials to follow the normal Fourth

Amendment process—i.e., to “get a warrant,” Riley,

573 U.S. at 403—before conducting searches for reasons other than detecting contraband. Likewise, the

mere evidence rule permitted the government to

search for anything in which it ostensibly held an ownership interest, not just contraband, including “the

fruits of crime” and “instrumentalities and means by

which a crime is committed.” Hayden, 387 U.S. at 296;

see Marron v. United States, 275 U.S. 192 (1927).

Those concepts have no relevance to the constitutional

limits on border searches.

21

Apart from misconstruing this point, the court below also asserted that any intrusion on privacy and security stemming from its ruling would be mitigated by

resource constraints that “limit[] in practice” how

much time border agents can spend manually examining the contents of an electronic device. Pet. App. 18a

& n.10. To be sure, “practical limits” prevent border

agents from exhaustively reviewing every device that

crosses the border, id., but similar practical limits also

prevent local police officers from exhaustively reviewing every device carried by every arrestee—and that

did not give this Court pause in Riley.

In any event, such assurances miss the point. The

Fourth Amendment protects “[t]he right of the people

to be secure” in their papers against unreasonable

searches. U.S. Const. amend. IV. No one can be “secure” in their digital papers if law enforcement officers

may peruse them at will whenever one takes an international trip. Because “no [person] whatsoever is privileged from this search,” Entick, 19 How. St. Tr. at

1065, this is “a power that places the liberty of every

man in the hands of every petty officer,” James Otis,

Against Writs of Assistance (1761). This Court should

not allow the decision below to stand.

22

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

BRIAN R. FRAZELLE

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18th Street NW, Suite 501

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amicus Curiae

May 28, 2021

* Counsel of Record