the honorable united states court of appeals for the st circuit is now in session all persons having any business before this honorable court make give their attendance and they shall be heard god save the united states of america and this honorable court today's cases will be called as previously announced the times will be as a lot of the counsel the st case today is assigned i'll assad at all versus chad after wealth at all appeal number twenty dash one thousand and seventy seven and appeal number tw and eighty one attorney wildman please introduce yourself for the record and begin thank you good morning your honor is my name is joshua walton i'm here from the united states department no court has ever required that level of suspicion for any border search where there are going to lecture on a device or anything else but the district court erred in holding that a quick look at a few texts or photos requires the same reasonable suspicion as a comprehensive cataloging and analysis of gigabytes of information stored on a device including deleted or encrypted data three circuits squarely addressing this question have correctly rejected that the holding that heightened suspicion is required at most only for a forensic search but not for manual searches district court likewise erred in holding that a border search permits a search for contraband but not for evidence of contraband smuggling and thus an electronic device can only be searched for digital contraband the border search exception is grounded in the longstanding right of the sovereign to prevent the entry of contraband searching for evidence of contraband smuggling serves that purpose just as much  searching for contraband itself since both may lead to interdicting the contraband before it enters the country the plaintiffs never offer any persuasive reason to the contrary and instead base their argument entirely on a case that the supreme court overruled nearly fifty years ago the district court in this case improperly we entered a blanket rule where any basic search no matter how minimal or unintrusive for example a brief look at a single text or e mail required reasonable suspicion the three circuits that have addressed this question make clear that that is incorrect  shortcomings i if we were prepared to to hold that the that the directives themselves lawful their overall d distinction between basic and advanced search generally comply with the constitutional standards and could resolve the question in this case i don't think that you need to go on necessarily and lay out all the between basic searches and forensic searches i take it your reference to forensic searches is not meant to differentiate forensics searches from what the parties have been referring to as advance searches that suggests exactly correct i think that is as the th circuit noted in calls us the import is the same between that terminology and the ones used in the directive while they're not entirely co extensive for purposes of resolving this case i think there's such a practical alignment that the difference in nomenclature is immaterial to resolving the issues before this court  now have some questions were any of the plaintiffs in fact searched after the date to the i'm sorry had their acquitted and searched pursuant to these directives after the affective date you and your briefings seems to suggest that two of them were but when i read the complaints i did not see that can you clarify yes your honor there were twenty one of them was submitted a supplemental declaration which is why you won't find it in the complaint but you'll searches to less than the statutory authority given to the agencies for searches you also i believe argue that the actual suspicion requirement or adequately consider all the exigent circumstances so i take it following up on judge sell you as question you think those issues would need to be addressed i think they would not need to be addressed if i heard your question correctly and the reason is that that exception was not invoked in this case at all as you just noted most of the searches except for q occur before two thousand and eighteen and the national security security exception which is i think what you're referring to yes you can exist prior to two thousand and eighteen so could not have been invoked for the simple reason that the exception did not thousand and eighteen both searches were basic searches and since the national security exception is to reasonable suspicion required for an advanced search for that reason the exception would not have been relevant because you know the words they were basic searches therefore noticed vision was required in the directive and and it follows from that that no exception for reasonable suspicion would have been required so for that reason i think it's completely  doesn't have anything really to do with this case all right now how do you understand the plaintiffs to differentiate the th amendment issues from  the st amendment issues well to be honest your honor i'm a little bit can tease to about what their st amendment argument is as we said in our in our brief i think the supreme court he gave video rejected any higher th amendment standard based on st amendment concerts and both the th and the th circuit have applied that specifically to border searches a whole lecture on it devices in their reply brief the plaintiffs say they're not asking for a higher standard in fact they say they're not really asking for a rule that protects expressive activity writ large so i'm not really sure what the argument is or where it comes from it seems to be a rule that applies only to expressive content and only when it exists on a cell phone i don't know where that comes from in the st amendment or the th amendment but no court as far as i'm aware has accepted it and it would just create a huge hole in the th amendment which is why at the border which is why the th in the th circuit both rejected any such argument ok unusually how all of the other circuits have dealt with these issues in the context of motions to suppress and criminal proceeding and this is a civil case not moment that the journalists presents a claim under the st amendment independent of the th amendment that  he is being targeted for the anti government articles or he has written and that he would not have been subjected to he or she would not have been subjected to either a basic search or an advanced search but for that at targeting on your position is it open for someone in the future were do or no evidence of targeting based on speech and that directives are content neutral on their face now so i take it that you're making a hypothetical but i do want to emphasize that this is this is not at all the facts of this case but i think the hypothetical that you posed would likely be a straight up st amendment challenge and not at all a th amendment challenge and so if you had that in a proper case you could look at it but bike under the  amendment as under the th amendment it did stream hypotheticals are presented in a case the courts can deal with it but there's no reason to answer hypothetical questions in this case that are not presented on the facts and in fact there was this a specific factual finding appeal by the district court that said there was no targeting based on speech in this case all right you have to forgive us judges but we always worry about the limits on an take it the government policy applies regardless of whether the person and her ring or ag sitting is a american citizen that's correct your honor and ten of the eleven correct but your honor i do i want to circle back to one of the questions that judge winter comments that you may judge lend about worrying about hypothetical situations i certainly don't think that you should be deciding this on hypotheticals but when you look at the particular facts of this case one of the things that's most notable about the plaintiffs is the dearth of facts alleged in their complaint and stated in their statement  of material facts most of the plaintiffs don't tell you anything about what was searched how much was searched some of them don't tell you how long it was searched in fact one of them just as my phone was searched and that's all the out and yet core and the plaintiffs want a blanket rule that applies to each and every search regardless of the factual situation in fact that was a strategic litigation choice by the plaintiffs who during discovery any need for discovery into the specific facts of the case because it's precisely because they wanted a blanket rule that treated the most minimal basic search under the same constitutional standard as the most comprehensive advanced search possible and do i understand you to be saying that they are for the way the plaintiffs have framed the case we have a facial attack and mosques and no possible as applied to tax i don't think that it's impossible to construe it i do think a facial it challenge here to and certainly one was made is easily disposed of because there's clearly some  which a phone can be searched without suspicion if it's looking at a single tax for it but as for the as applied challenge that man can have an honest yes that fails as well because the d of facts does not remotely establish anything close to what other courts would consider a state border search of a device that requires reasonable suspicion doesn't come anywhere close to the so called forensic searches ok one other question although you take out after the plaintiffs for not providing a lot of facts and fact the litigation started before the directives were issued and the the bringing of the suit may have had something to do with the directives i looked at what you provided as  legislative history within the agency as to the origin of the directives there's not an explicit reference to the  amendment did i miss something an explicit reference to the th amendment in the directives as a basis for the change and position that the directives  now offer well i do think that the agency took the view that they did not necessarily think advanced search is required or reasonable suspicion under the constitution but they did take note of the cases and in fact if you look at the guidance that i see issue which is in the agenda not the appendix there is a specific reference to the th circuit case in courses so the agencies certainly were aware of what the circuit courts were doing with respect to the constitutional requirements of cellphone searches devices ok so i kc it your position is we are not conceding that even for ed vance searches the constitution requires reasonable suspicion but because the directives require reasonable suspicion for ed that searches the constitutional issue is not before the court that's i couldn't have said it better myself excellent that's exactly correct and that's for example what the court disappearing or didn't ramsey the search of mail where they said the regulation does not allow the postal service to read the mail without a warrant and since the regulation doesn't allow the government to do that we don't need to reach the constitutional question of whether the for the men would additionally prohibit with the government's regulation also prohibits ok thank you thank you your honor attorney address two main points today st this court should hold that the constitution requires a warrant for electronic device searches at the border but at a minimum it should uphold the district court's ruling that the constitution requires at least reasonable suspicion of digital contraband and nd this court should hold as the district court correctly held that the rule should be the same for basic searches as for advanced search is because basic arrest of cell phones requires a warrant and was unanimously upheld in riley but i want to turn to the government's arguments about wesen the most especially and and i want to note a couple of things st the directives do not comply currently with the rulings of all other circuit courts the th circuit in coal sues st of all explicitly reserved to the question of what standard applies to basic searches it did not say that basic such as can be done in a suspicion less manner and then an egg but can the th circuit decision that was decided one week after the district court opinion in this case the th circuit said actually you cannot warrantless border device searches to advanced preexisting domestic investigations in that case border agents search someone's cell phone looking for evidence of a purely domestic trafficking investigation and the th circuit said you need a warrant for that search even though in fact officers have probable cause at the moment that they searched the government's directives do not comply with that requirement and similarly with the th circuit council we've got two different types of searches here will use the government's nomenclature the basic search and the advantage search there is nothing in your brief that contests the government's assertion that for advance searches the directives are in fact comply with reasonable suspicion you do say that you're still compliance with reasonable suspicion you did not contest the government's assertion are you now contesting it with respect to lynch we did  make the argument that the directives do not in fact require special because of the national security exception which permits them to conduct specialist searches under that vaguely defined exception and ryan said at issue in this case was filed before the understanding and i think the point because we are arguing that as a categorical matter it is not even as applied matter that all of the plaintiffs remain at risk of these future searches without suspicion i understand you can challenge those two points but it seems to me you're bringing the national security exception in from left field that there's nothing in this case that puts any such exception valid s you know as numerous courts have no no no no no no no no please you keep sort of circling around let's put aside your answer that  well yes we did in fact challenge reasonable suspicion for ed advanced searches as to the exception for national security now let's assume that  national security issue is not in front of us so i go back to my question if that's not in front of us is are you contending that the advanced search directive does not itself require reasonable suspicion and if so what is the basis for that i apologize judgment and i think i understand your question correctly the plaintiffs argue that even if the directives require reasonable suspicion that does not comply with the constitutional requirement because it must be reasonable suspicion of digital contraband as the search and whether you are contesting that the policy itself requires reasonable suspicion thus far i am not hearing any argument that the policy itself does not require reasonable suspicion you are now onto a separate argument as to what they are permitted to search for using a reasonable suspicion argument a standard and you are saying it's limited to actual evidence of contraband do i have that correct yes to the extent that we are arguing that it is limited to evidence not to evidence of contraband but to a search for digital contraband itself ok so why why should this court adopt such a standard judge lynch we think it is important that the court narrow the scope of permissible search for the reasons that the judge by these opinion and kanya laid out so that searches are closely tethered to the historical interest that permitted warrantless searches at the border by beat by these opinion noted that the primary  interest that justifies warrantless searches is the search for physical contraband and that the search for evidence is not closely tied to that and there are you know two concerns in particular if the search can be for more than digital contraband  st it allows for general rummaging through private and personal information in people's devices you know of the sort of general search that is one of the main concerns behind th amendment protections but nd the reco rd in this case shows that the government admits that it can conduct searches of people of travelers when the person of interest is someone other than the traveler so a reasonable suspicion requirement of any violation of a law enforced or it administered by c b p and ice means that the agencies can and do search for example a journalist's phone because they are interested in the activities of a source or a business person's phone because of the activities of their associates a family member's phone because they have reasonable suspicion about the family member not the person themselves are ok can i go back to an argument your brother has made he said as your plaintiffs who are actually subject to the policies it was merely a basic search it was not an advanced search correct he's referring to the two searches that took directed dick possible criminal activity by rd party correct no your honor that is correct but that is the record evidence that the government's policies permit this so i'd like to move on simply because we don't have a lot of to i'm ok so i have been struggling with the distinction against someone for speech that they have engaged in or the press is sara any distinction between the two analyses actually presented in this case yes your honor the st amendment requires an independent analysis and the the best analogy i can give you to the nature of our claim is the concern that the supreme court articulated  and seventy seven decades ago when it noted that if in fact customs officials were permitted to read all incoming international mail without suspicion that would raise the spect chilling st amendment freedoms such that a warrant requirement could protect against that so that the supreme court was so concerned about a regime of reading correspondence that was coming over the international border as to float the possibility of this st amendment problem requiring a warrant that was not about targeting individuals the concern wasn't that journalist correspondent we opened you know a lawyer score a sponsor the open that was just the chill on americans freedoms generally knowing that i said now let's work backward from that premise to if the government had reasonable suspicion would there in fact be a st amendment problem your honor i think that a reasonable suspicion of digital contraband requirement would go a long way to protecting against the chill on st amendment freedoms because individuals would then be confident when they cross the border that their correspondence that their e mails that their texts and photos won't just be searched at the whim of an officer or without any suspicion of wrongdoing on their part specifically and that the searches will be limited because when an officer searching through a phone of course you know even if an officer is looking for specific things what they are likely to see are hundreds of e mails calendar invitations notifications about medical appointments you know looking through photos you see a lot of personal intimate family photos and even if you're searching for specific things so limiting the scope of the search would would really go a long way to protecting against those st amendment harms again the journalist would then not have to worry as much that an officer could just look at their e mails for source information because that would not be about a search for digital contraband a lawyer a defense lawyer as as was raised by the in the the national association of criminal defense lawyers and others they would have to worry that that their files on their laptop would be searched for wrongdoing by their clients because they know only a permissible search is for digital contraband that they themselves are carrying so we do think that that that  be no so such exceptions because regardless there is a chilling effect no your honor the exemption circumstances exception to any general rule applied would still be available and i don't think that that would have a chilling effect because again exigent circumstances requires certain factors and one of the key factors of course the suspicion of wrongdoing by key of course to a chilling effect is when people who have not done anything wrong and therefore cannot control the fact that an officer might search their information that's that's the key so as soon as you enter it in the realm of exit in circumstances where  you know officers generally are dealing with a situation of wrongdoing or potential harm the mine run of innocent travelers who cross the border need not be concerned about that and that need not raise a general st amendment concern reasonable suspicion standard in and of itself concern judge so yet do i understand you to mean reasonable suspicion but absent a digital contraband limitation yes suspicion has to be targeted has to be aimed at the individual travel of this got to be some reason to believe that he or she has in his or her possession that about the reasonable suspicion reply i am and that's a that's a directive places on advanced searches so let's not let's not complicate matters beyond that to  subjected to any advance sure under a reasonable suspicion requirement i mean you're asking us to really give you an advisory opinion as to how this might work constructionist instance your honor it is correct that we're not alleging specific attorney attorney you asked a question about whether the directives require this and and the i'm not sure if that's good or bad for you joe so far so good judge the district court judge correctly noted that the plaintiffs raise that challenge to the policies but i understand it if if you are interested in whether the specific plaintiffs experiences raise the specific advanced search concern but no we do not allege that we say that facially these policies do not comply with the st amendment ok thank you that's  the information on the electronic device had to do with the commission of a crime now the district court limited this to contraband yet congress has authorized border agents to search and intervene in a number of crimes and what used to be sorts of other worries that congress had and so they authorize these searches but you seem to sink that congress's power to authorize sees searches is limited by a historic understanding of old supreme court cases that we're concerned with contraband and that is somehow a limitation and i don't understand could you tell me why you think that that's the correct way of understanding the yes judgment i will try to do so  all we don't dispute that congress has given c b p and i think the authority to enforce a host of laws congress is not specifically given it the authority to search devices at the border so i want to be clear about that but it has given the authority is there any such limitation the only thing i have derived from your argument is a limitation that you think is and  historic function of borders searches at a time before congress had authorized all of these other activities is that the sole basis for it if there's also the  limited purposes and in fact in porous month her new the supreme court left open the possibility that some border such as might be per se on reasonable under the th amendment and in riley the supreme court and now adjust the search incident to arrest exception to the border search exception as a category of warrantless search authority that the government has but which must be narrowly tethered to its justifications so the supreme court you know reiterated its understanding that united states i'd like to just begin with the question of debt the holding of the th circuit in canola karnow however is pronounced about digital contraband the argument was made in canal and is made here but i haven't heard the th circuit or the plaintiffs really giving any under persuasive answer about why searching for evidence of contraband smuggling doesn't serve the government's purpose of interdicting contraband before enters the country to me that just doesn't make any sense and i haven't heard a sufficient answer to that i also want to point out the sweeping nature of the potential sweeping nature of what that rule would mean if you couldn't search for evidence because when you look beyond the devices in this case to what the c b p does on a normal day and with kobe we're not in normal times but in normal times there searching billions of dollars of cargo shipments are coming in every day and the c b p demand bills of lading invoices all kinds of paperwork regarding the cargo before it can enter the united states all of that is evidence not contraband and if you can't look at have it then you couldn't look at any of those yes so they're proposing a rule which would have potentially sweeping consequences for the border search exception plaintiffs talk about a question about general rummaging for general law enforcement purposes the c b p directive specifically says they must have reasonable suspicion of a provision th enforces which means that it's going to have a nexus to the border which is exactly what the th circuit said in courses is proper and fine so you don't need to consider anything about purely domestic offenses it's not an issue in this case although i would note that some circuits including the d c circuit in girl were just cited in our brief and the nd circuit in a two thousand and fifteen case called levy said that you don't even need that restriction for the c d p that was outside of the context or of a digital device but it was within the context of a horse or for not asking for that rule in this case because the directives wouldn't permit us to do it anyway but i do think that there's no basis at all and can now it's just reviving a distinction from boyd to disappear in court overruled because it had no basis in the constitutional tax was an only workable rule and had no relationship to privacy concerns that underlay the th amendment don't also like to address briefly the st amendment question and just correct the record a little bit the my opposing counsel refers to ramsey the male case in fact the supreme court didn't reach the underlying concept st amendment question about reading the mail but everything the court said suggested that would not be a constitutional problem and the court explicitly rejected the argument that mail is different when it comes to the border search exception they said there's no reason to think an international e mail letter is different from a letter that you carry in your hand over the border and that the privacy concerns should be any different such that they would fact the plaintiffs in their reply brief at page twenty one say they're not even asking for a rule for all expressive activity just expressive activity that's on a phone and i don't understand where that distinction would possibly come from in the st amendment  and just to refer returned one for one last point about can now there was a question i believe judge flinched posed about whether the plaintiffs have made any allegations that what was looking at in this case was mere habit ins as opposed to searching for contraband and the answer to that question i think is you wouldn't know precisely because of the dearth of factual allegations in the complaint in fact even when they say something like you look at an e mail there's no indication whether you're looking at an e mail because you thought there was digital contraband in that e mail as was the case in caught or min and other things where you were that would be perfectly permissible or whether they were looking for  actually part of the problem with the can no rule which is with the th circuit's and in konoha is at least when it comes to a basic search for which you need no reasonable suspicion at all you can look anywhere where digital contraband quote may be and one of the problems that rule is there is it's very difficult to know how would judge or reporter officer is supposed to determine where digital contraband quote may be because it is often can be hidden purposefully hidden within a digital device and that's what i'm i have finished your answer so your honor i think that d d you should reverse the judgment of the district court in terms of both  blanket rule between basic and advanced search and it's reliance on the rationale and can know if there's any further question i'm happy to answer them yeah you seem to be saying not only reverse but vacate the relief that has been given the declaratory judgment correct that's correct all right thank you that concludes argument in this case attorney waldman an attorney bhandari you should disconnect from the hearing at this time