United States Court of Appeals

For the First Circuit

Nos. 20-1077

 20-1081

GHASSAN ALASAAD; NADIA ALASAAD; SUHAIB ALLABABIDI; SIDD 

BIKKANNAVAR; JEREMIE DUPIN; AARON GACH; ISMAIL ABDEL-RASOUL, 

a/k/a Isma'il Kushkush; DIANE MAYE ZORRI; ZAINAB MERCHANT; 

MOHAMMED AKRAM SHIBLY; MATTHEW WRIGHT,

Plaintiffs, Appellees/Cross-Appellants,

v.

ALEJANDRO MAYORKAS, Secretary of the U.S. Department of Homeland 

Security, in his official capacity;* TROY MILLER, Senior Official 

Performing the Duties of the Commissioner of U.S. Customs and 

Border Protection, in his official capacity;** TAE D. JOHNSON, 

Senior Official Performing the Duties of the Director of U.S. 

Immigration and Customs Enforcement, in his official capacity,***

Defendants, Appellants/Cross-Appellees.

* Pursuant to Fed. R. App. P. 43(c)(2), Secretary of the 

U.S. Department of Homeland Security Alejandro Mayorkas has been 

substituted for former Acting Secretary of the U.S. Department of 

Homeland Security Chad F. Wolf as appellant/cross-appellee.

** Pursuant to Fed. R. App. P. 43(c)(2), Senior Official 

Performing the Duties of the Commissioner of U.S. Customs and 

Border Protection Troy Miller has been substituted for former Chief 

Operating Officer and Senior Official Performing the Duties of the 

Commissioner of U.S. Customs and Border Protection Mark A. Morgan 

as appellant/cross-appellee.

*** Pursuant to Fed. R. App. P. 43(c)(2), Senior Official 

Performing the Duties of the Director of U.S. Immigration and 

Customs Enforcement Tae D. Johnson has been substituted for former

Senior Official Performing the Duties of the Director of U.S. 

Immigration and Customs Enforcement Tony H. Pham as

appellant/cross-appellee.
APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Denise J. Casper, U.S. District Judge]

Before

Lynch and Selya, Circuit Judges,

and Laplante,  District Judge.

Joshua Paul Waldman, Appellate Staff, Civil Division U.S. 

Department of Justice, with whom Joseph H. Hunt, Assistant Attorney 

General, Scott R. McIntosh, Appellate Staff, Civil Division U.S. 

Department of Justice, and Andrew E. Lelling, United States 

Attorney, were on briefs, for appellants/cross-appellees. 

Esha Bhandari, with whom Adam Schwartz, Sophia Cope, Saira 

Hussain, Electronic Frontier Foundation, Hugh Handeyside, Nathan 

Freed Wessler, American Civil Liberties Union Foundation, Matthew

R. Segal, Jessie J. Rossman, and American Civil Liberties Union 

Foundation of Massachusetts, Inc. were on briefs, for 

appellees/cross-appellants.

Caroline M. DeCell, Stephanie Krent, Bruce D. Brown, Katie 

Townsend, Gabriel Rottman, Caitlin Vogus, and Linda Moon on brief 

for the Knight First Amendment Institute at Columbia University,

the Reporters Committee for Freedom of the Press, and 12 Media 

Organizations, amici curiae.

Kurt Wimmer, Rafael Reyneri, Calvin Cohen, Frank Broomell, 

and Covington & Burling LLP on brief for the Center for Democracy 

& Technology, the Brennan Center for Justice, R Street Institute, 

and Techfreedom, amici curiae.

Michael J. Iacopino, Michael Price, and Mukund Rathi on brief 

for National Association of Criminal Defense Lawyers, amicus 

curiae.

Christopher T. Bavitz and Cyberlaw Clinic, Harvard Law 

School, on brief for Harvard Immigration and Refugee Clinic, amicus 

curiae.

Meghan Koushik, Mark C. Fleming, Wilmer Cutler Pickering Hale 

and Dorr LLP, Glenn Katon, and Hammad Alam on brief for Asian 

Americans Advancing Justice, Asian Law Caucus, et al., amici 

curiae.

Elizabeth B. Wydra, Brianne J. Gorod, Brian R. Frazelle, and 

** ** Of the District of New Hampshire, sitting by 

designation.
Dayna J. Zolle on brief for Constitutional Accountability Center, 

amicus curiae. 

Jennifer Pinsof, David A. Schulz, Media Freedom & Information 

Access Clinic, Yale Law School Abrams Institute, Elizabeth A. 

Ritvo, Joshua P. Dunn, and Brown Rudnick LLP on brief for Floyd 

Abrams, Jack M. Balkin, Hannah Bloch-Webah, Kiel Brennan-Marquez,

Ryan Calo, Danielle Keats Citron, Julie E. Cohen, Catherine Crump,

Mary Anne Franks, Woodrow Hartzog, Heidi Kitrosser, Gregory 

Magarian, Neil M. Richards, Scott Skinner-Thompson, Daniel J. 

Solove, Amie Stepanovich, Katherine J. Strandburg, and Ari Ezra 

Waldman, amici curiae.

February 9, 2021
- 4 -

LYNCH, Circuit Judge. Plaintiffs bring a civil action 

seeking to enjoin current policies which govern searches of 

electronic devices at this country's borders. They argue that

these border search policies violate the Fourth and First 

Amendments both facially and as applied. The policies each allow 

border agents to perform "basic" searches of electronic devices 

without reasonable suspicion and "advanced" searches only with 

reasonable suspicion. In these cross-appeals we conclude that the 

challenged border search policies, both on their face and as 

applied to the two plaintiffs who were subject to these policies, 

are within permissible constitutional grounds. We find no 

violations of either the Fourth Amendment or the First Amendment. 

While this court apparently is the first circuit court to address 

these questions in a civil action, several of our sister circuits 

have addressed similar questions in criminal proceedings 

prosecuted by the United States. We join the Eleventh Circuit in 

holding that advanced searches of electronic devices at the border 

do not require a warrant or probable cause. United States v. 

Vergara, 884 F.3d 1309, 1311-12 (11th Cir. 2018). We also join 

the Ninth and Eleventh Circuits in holding that basic border 

searches of electronic devices are routine searches that may be 

performed without reasonable suspicion. United States v. Cano, 

934 F.3d 1002, 1016 (9th Cir. 2019), petition for cert. filed (Jan. 

29, 2021) (No. 20-1043); United States v. Touset, 890 F.3d 1227, 
- 5 -

1233 (11th Cir. 2018). We also hold the district court erroneously 

narrowed the scope of permissible searches of such equipment at 

the border.1

I. Facts

The material facts are not in dispute. We supplement 

our description of the facts with the district court's

comprehensive statement of facts. Alasaad v. Nielsen, 419 F. Supp. 

3d 142, 148-50 (D. Mass. 2019); Alasaad v. Nielsen, No. 17-cv11730-DJC, 2018 WL 2170323 at *1-2 (D. Mass. May 9, 2018). 

A. Agency Policies

Two policies promulgated by U.S. Customs and Border 

Protection ("CBP") and U.S. Immigration and Customs Enforcement 

("ICE") are at issue in this case. 

The first policy is CBP Directive No. 3340-049A, Border 

Search of Electronic Devices (2018), https://www.cbp.gov/

sites/default/files/assets/documents/2018-Jan/CBP-Directive3340-049A-Border-Search-of-Electronic-Media-Compliant.pdf (the 

"CBP Policy"). The CBP Policy "provide[s] guidance and standard 

operating procedures for searching, reviewing, retaining, and 

sharing information contained in . . . mobile phones . . . and any 

other communication, electronic, or digital devices . . . to ensure 

compliance with customs, immigration, and other laws that CBP is 

1 We acknowledge with appreciation the assistance of the 

amici curiae in this case. 
- 6 -

authorized to enforce and administer." CBP Policy at 1.2 The CBP 

Policy defines an "electronic device" as "[a]ny device that may 

contain information in an electronic or digital form, such as 

computers, tablets, disks, drives, tapes, mobile phones and other 

communication devices, cameras, music and other media players." 

Id. at 2. The CBP Policy does not address CBP's authority to 

search electronic devices with a warrant, consent, or in response 

to exigent circumstances. Id.

The CBP Policy distinguishes between "basic" and 

"advanced" searches.3 It defines an "advanced search" as "any 

search in which an Officer connects external equipment, through a 

wired or wireless connection, to an electronic device not merely 

to gain access to the device, but to review, copy, and/or analyze 

its contents." Id. at 5. Advanced searches require "supervisory 

approval" and under the CBP Policy may only be performed "[i]n 

instances in which there is reasonable suspicion of activity in 

violation of the laws enforced or administered by CBP, or in which 

there is a national security concern." Id. A "basic search" is 

any non-advanced search. Id. at 4. The CBP Policy states that a 

basic search may be performed "with or without suspicion." Id.

2 The policy is mandatory. CBP Policy at 1 ("All CBP 

Officers . . . shall adhere to the policy." (emphasis added)).

3 "Advanced" searches are sometimes referred to as 

"forensic" searches. Though the terms are not precisely coextensive, any difference is immaterial here. 
- 7 -

For both basic and advanced searches, the CBP Policy 

only allows officers to search "information that is resident upon 

the device," and devices must be disconnected from the internet 

before a search is performed. Id.

In addition, the CBP Policy states that "[a]n Officer 

may detain electronic devices . . . for a brief, reasonable period 

of time to perform a thorough border search." Id. at 7. 

The second policy is Immigration and Customs Enforcement 

Directive No. 7-6.1, Border Searches of Electronic Devices (2009), 

https://hdhs.gov/xlibrary/assets/ice_border_search_electronic_

devices.pdf, ("ICE Directive") as superseded in part by 

Immigration and Customs Enforcement Broadcast: Legal Update --

Border Search of Electronic Devices (2018) ("ICE Broadcast"), 

(together "ICE Policy" and, together with the CBP Policy, the 

"Policies"). The ICE Policy governs ICE's searches of electronic 

devices at the border "to ensure compliance with customs, 

immigration, and other laws enforced by ICE." ICE Directive at 1. 

The policy defines an "electronic device" as "any item that may 

contain information, such as computers, disks, drives, tapes, 

mobile phones and other communication devices, cameras, music 

players, and any other electronic or digital devices." ICE 

Directive at 2. The policy allows for suspicionless basic searches 

but states that as of May 11, 2018, ICE agents "should no longer 

perform advanced border searches of electronic devices without 
- 8 -

reasonable suspicion." ICE Broadcast. The ICE Policy also allows 

agents to detain electronic devices for a "reasonable time given 

the facts and circumstances of the particular search." ICE 

Directive at 4.

Plaintiffs do not argue there are any meaningful 

differences between the two agencies' policies. 

B. The Searches of Plaintiffs' Electronic Devices

Plaintiffs are ten U.S. citizens and one lawful 

permanent resident. Each states that CBP or ICE officers searched 

his or her electronic devices on one or more occasion. 

Only plaintiffs Zainab Merchant and Suhaib Allababidi 

allege that they were searched after CBP issued its revised 2018 

policy and ICE published its advanced search policy. These 

searches were basic searches. These two plaintiffs do not allege 

that their devices were retained pursuant to the Policies. 

Accordingly, no factual information has been presented to us as to 

any detention under these policies.

II. Procedural History

Plaintiffs filed suit on September 13, 2017 -- before 

the effective date of the challenged Policies -- alleging that CBP 

and ICE violated the Fourth and First Amendments by performing 

various types of searches of electronic devices without warrants

and violated the Fourth Amendment by retaining plaintiffs' 
- 9 -

electronic devices for an extended period absent probable cause.4

The plaintiffs sought declaratory and injunctive relief, including 

expungement of "all information gathered from, or copies made of, 

the contents of Plaintiffs' electronic devices." 

On May 9, 2018, the district court denied the 

government's motion to dismiss. Alasaad, 2018 WL 2170323 at *24.

After discovery, the parties filed cross-motions for 

summary judgment. The district court granted in part and denied 

in part plaintiffs' motion for summary judgment and denied the 

government's motion for summary judgment. Alasaad, 419 F. Supp. 

3d at 174. The district court also held that plaintiffs had 

standing to seek declaratory and injunctive relief as well as 

expungement of their data from CBP and ICE databases. Id. at 151-

54.5

As to the merits of the Fourth Amendment challenges, the 

district court first held that basic and advanced searches are 

4 No plaintiff in this case asserts that his or her

electronic device passcodes or passwords were entitled to 

additional constitutional protections.

A petition for a writ of certiorari is pending before 

the Supreme Court in Andrews v. New Jersey as to whether the Fifth 

Amendment protects an individual from being compelled to disclose 

the passcodes to his or her electronic devices when doing so may 

expose the individual to criminal prosecution. Petition for Writ 

of Certiorari, Andrews v. New Jersey, (No. 20-937).

5 The government does not challenge plaintiffs' standing 

on appeal. 
- 10 -

both "non-routine" searches, and thus that both types of searches 

required reasonable suspicion.6 Id. at 163, 165. The court 

concluded that the basic search component of the Policies violated 

the Fourth Amendment. Id. at 165, 168.

As to the scope of both basic and advanced searches

permitted under the Policies, the court found two constitutional 

violations. It reasoned that because the border search exception 

is premised on the government's paramount interest in "stopping 

contraband at the border," "the reasonable suspicion that is

required . . . is . . . that the electronic devices contain[]

contraband [itself]," rather than (a) evidence of contraband or

(b) evidence or information regarding other crimes enforced at the 

border. Id. at 166. Thus, the Policies were unconstitutional

because they did not restrict agents to searches for contraband 

contained in the devices themselves and allowed border searches as 

to evidence of all crimes CBP or ICE are authorized to enforce.7

CBP Policy at 1, 5; ICE Directive at 1, 2. 

6 The district court noted that a "cursory search of an 

electronic device -- e.g., a brief look reserved to determining 

whether a device is owned by the person carrying it across the 

border, confirming that it is operational and that it contains 

data . . . [would] not require a heightened showing of cause." 

Alasaad, 419 F. Supp. 3d at 163. 

7 ICE and CBP are authorized to enforce a broad spectrum 

of laws. See, e.g., 6 U.S.C. § 211(c)(5) (requiring CBP to 

"detect, respond to, and interdict terrorists, drug smugglers and 

traffickers, human smugglers and traffickers, and other persons

who may undermine the security of the United States"); id.

§ 211(c)(11) (requiring CBP to "enforce and administer the laws 
- 11 -

As to the long-term detention of plaintiffs' electronic 

devices, the district court held that devices detained based on 

reasonable suspicion could be retained only for a "reasonable 

period that allows for an investigatory search for contraband." 

Alasaad, 419 F. Supp. 3d at 170. 

The district court granted declaratory relief stating

that 

the CBP and ICE policies for "basic" and 

"advanced" searches . . . violate the Fourth 

Amendment to the extent that the policies do 

not require reasonable suspicion that the 

devices contain contraband for both such 

classes of non-cursory searches and/or seizure 

of electronic devices; and that the noncursory searches and/or seizures of 

Plaintiffs' electronic devices, without such 

reasonable suspicion, violated the Fourth 

Amendment.

Id. at 173. 

The district court declined to grant broad injunctive 

relief based on its finding of constitutional violations. Id. at 

174. It did enjoin the government from searching or detaining any 

of plaintiffs' electronic devices at the border absent "reasonable 

suspicion that the device contains contraband," and from detaining 

relating to agricultural import"); 31 U.S.C. §§ 5316-17 

(authorizing warrantless border searches to enforce limitations on 

transferring $10,000 or more out of the United States); 19 C.F.R. 

§ 12.39 (authorizing CBP to enforce law restricting the importation 

of "articles involving unfair methods of competition"). 
- 12 -

plaintiffs' electronic devices for "longer than a reasonable 

period." 

The district court denied plaintiffs' request for 

expungement. Id. at 171-73.

As to the First Amendment claim, the district court did 

not analyze that claim independently from the Fourth Amendment 

claim. It denied plaintiffs' claim for relief, saying "to the 

extent that [the First Amendment claim] seeks some further ruling 

or relief based upon Plaintiffs' invocation of First Amendment 

rights, not otherwise granted as to [plaintiffs' Fourth Amendment 

claim]," it would deny plaintiffs' motion for summary judgment. 

Id. at 170.

The government filed a timely notice of appeal, and 

plaintiffs cross-appealed. 

III. Analysis

We review a grant of summary judgment de novo. Henderson

v. Mass. Bay Transp. Auth., 977 F.3d 20, 29 (1st Cir. 2020). 

"Cross-motions for summary judgement do not alter the basic . . . 

standard, but rather simply require us to determine whether either 

of the parties deserves judgment as a matter of law on facts that 

are not disputed." Adria Int'l. Grp., Inc. v. Ferre Dev., Inc.,

241 F.3d 103, 107 (1st Cir. 2001). 

We begin with plaintiffs' Fourth Amendment claims before 

moving to their First Amendment claim and request for expungement. 
- 13 -

A. The Level of Suspicion Required for Border Searches of 

Electronic Devices

Plaintiffs argue that all electronic device searches at 

the border require a warrant, or in the alternative that such 

searches require reasonable suspicion that the device contains 

contraband. Plaintiffs do not contest that the Policies require 

ICE and CBP to have reasonable suspicion to perform an advanced 

border search. We address the arguments in turn. 

1. Border Searches of Electronic Devices Do Not Require a Warrant 

The Fourth Amendment forbids "unreasonable searches and 

seizures." U.S. Const. amend. IV. "In the absence of a warrant, 

a search is reasonable only if it falls within a specific exception 

to the warrant requirement." Riley v. California, 573 U.S. 373, 

382 (2014). Otherwise,

[a]bsent more precise guidance from the 

founding era, we generally determine whether 

to exempt a given type of search from the 

warrant requirement "by assessing, on the one 

hand, the degree to which it intrudes upon an 

individual's privacy and, on the other, the 

degree to which it is needed for the promotion 

of legitimate governmental interests."

Id. at 385 (quoting Wyoming v. Houghton, 526 U.S. 295, 300 (1999)). 

One such exception to the warrant requirement, 

recognized from early in our history, is the border search

exception. See Boyd v. United States, 116 U.S. 616, 623 (1886); 

Carroll v. United States, 267 U.S. 132, 153-54 (1925). The 

exception is grounded in the government's "inherent authority to 
- 14 -

protect, and a paramount interest in protecting, its territorial 

integrity." United States v. Flores-Montano, 541 U.S. 149, 153

(2004). Further, "the expectation of privacy [is] less at the 

border than in the interior . . . [and] the Fourth Amendment 

balance between the interests of the Government and the privacy 

right of the individual is also struck much more favorably to the 

Government at the border." United States v. Montoya de Hernandez, 

473 U.S. 531, 539-40 (1985).

Plaintiffs rely on Riley v. California to argue that the 

border search warrant exception does not encompass the search of 

electronic devices because such searches do little to advance the 

underlying purposes of the border search exception -- which they 

say are limited to interdicting contraband and preventing the entry 

of inadmissible persons.8 

This argument rests on a misapprehension of the 

applicability here of the Supreme Court's holding in Riley. In 

Riley, the Supreme Court held that the search incident to arrest 

exception to the warrant requirement did not extend to searches of 

cellphones. 573 U.S. at 403. In doing so, it reasoned that 

individuals have a heightened privacy interest in their electronic 

devices due to the vast quantity of data that may be stored on 

8 For reasons articulated later in this opinion, we reject 

plaintiffs' narrow view of the purposes of the border search 

exception.
- 15 -

such devices, and that the government's interest in searching an 

arrestee's cellphone during an arrest was limited because such 

searches do not meaningfully advance the search incident to arrest 

exception's purposes of protecting officers and preventing the 

destruction of evidence. Id. at 386, 388-91. Thus, the balance 

of interests did not support extending the search incident to

arrest exception. Id. at 386. 

Contrary to plaintiffs' assertions, Riley does not 

command a warrant requirement for border searches of electronic 

devices nor does the logic behind Riley compel us to impose one. 

As recently explained by this circuit, Riley "d[id] not either 

create or suggest a categorical rule to the effect that the 

government must always secure a warrant before accessing the 

contents of [an electronic device]." United States v. RiveraMorales, 961 F.3d 1, 14 (1st Cir. 2020). Nor does Riley by its 

own terms apply to border searches, which are entirely separate 

from the search incident to arrest searches discussed in Riley. 

The search incident to arrest warrant exception is premised on 

protecting officers and preventing evidence destruction, rather 

than on addressing border crime. Riley, 573 U.S. at 384-86.

Further, given the volume of travelers passing through 

our nation's borders, warrantless electronic device searches are 

essential to the border search exception's purpose of ensuring 

that the executive branch can adequately protect the border. See
- 16 -

Montoya de Hernandez, 473 U.S. at 544 (stating that border 

officials are "charged . . . with protecting this Nation from 

entrants who may bring anything harmful into this country"). A 

warrant requirement -- and the delays it would incur -- would 

hamstring the agencies' efforts to prevent border-related crime 

and protect this country from national security threats.

Every circuit that has faced this question has agreed 

that Riley does not mandate a warrant requirement for border 

searches of electronic devices, whether basic or advanced. The 

Eleventh Circuit held that "[b]order searches have long been 

excepted from warrant and probable cause requirements, and the 

holding of Riley does not change this rule." Vergara, 884 F.3d at 

1312-13. The Fourth Circuit held after Riley that "law enforcement 

officers may conduct a warrantless forensic search of a cell phone 

under the border search exception where the officers possess 

sufficient individualized suspicion of transnational criminal 

activity." United States v. Aigbekaen, 943 F.3d 713, 719 n.4 (4th 

Cir. 2019).9 The Ninth Circuit, noting that even "post-Riley, no 

court has required more than reasonable suspicion to justify even 

an intrusive border search," held that both basic and advanced 

9 The Fourth Circuit did not decide whether an advanced 

search must be supported by probable cause. Aigbekaen, 943 F.3d 

at 720 & n.5. 
- 17 -

border searches may be performed without a warrant or probable 

cause. Cano, 934 F.3d at 1015-16. 

We too hold that neither a warrant nor probable cause is 

required for a border search of electronic devices.

2. Basic Searches May Be Performed Without Reasonable Suspicion

Agents may perform "routine" searches at the border 

without reasonable suspicion. Montoya de Hernandez, 473 U.S. at 

538, 541. Under this circuit's law, certain "non-routine" searches 

must be grounded on reasonable suspicion. United States v. MolinaGómez, 781 F.3d 13, 19 (1st Cir. 2015); United States v. Braks, 

842 F.2d 509, 513-14 (1st Cir. 1988). Whether a border search is 

routine or non-routine depends on an assessment of the facts of 

the case. Braks, 842 F.2d at 512 (holding that request to female 

at border to lift skirt was routine search); Molina-Gómez, 781 

F.3d at 19 (holding that the search of a laptop and PlayStation, 

whether routine or non-routine, was justified because reasonable 

suspicion existed); United States v. Robles, 45 F.3d 1, 5 (1st 

Cir. 1995) (holding, where the government conceded that drilling 

into metal cylinder was non-routine search, that the search was 

justified by reasonable suspicion). Subjecting individuals to 

strip searches or body-cavity searches are examples of non-routine 

searches. Molina-Gómez, 781 F.3d at 19. 

Plaintiffs argue that because electronic devices may 

contain a trove of sensitive personal information, basic border 
- 18 -

searches of electronic devices are non-routine searches requiring 

at least reasonable suspicion. While, as noted above, Riley's 

warrant requirement in the search incident to arrest context does 

not extend to border searches, Riley recognized that modern 

electronic devices "implicate privacy concerns far beyond those 

implicated by the search of a cigarette pack, a wallet, or a purse"

and "differ in both a quantitative and qualitative sense from other 

objects that might be kept on [a traveler’s] person." 573 U.S. at 

393. These privacy concerns, however significant or novel, are 

nevertheless tempered by the fact that the searches are taking 

place at the border, where the "Government’s interest in preventing 

the entry of unwanted persons and effects is at its zenith,"

Flores-Montano, 541 U.S. at 152, and the "Fourth Amendment balance 

of interests leans heavily to the Government," Montoya de 

Hernandez, 473 U.S. at 544. Electronic device searches do not fit 

neatly into other categories of property searches, but the bottom 

line is that basic border searches of electronic devices do not 

involve an intrusive search of a person, like the search the 

Supreme Court held to be non-routine in Montoya de Hernandez. 473 

U.S. at 541 & n.4. Basic border searches also require an officer 

to manually traverse the contents of the traveler's electronic 

device, limiting in practice the quantity of information available 

during a basic search. The CBP Policy only allows searches of 

data resident on the device. CBP Policy at 4. And a basic border 
- 19 -

search does not allow government officials to view deleted or 

encrypted files.10

We thus agree with the holdings of the Ninth and Eleventh

circuits that basic border searches are routine searches and need 

not be supported by reasonable suspicion. Cano, 934 F.3d at 1016; 

Touset, 890 F.3d at 1233; see also United States v. Kolsuz, 890 

F.3d 133, 146 n.5 (4th Cir. 2018) (stating that United States v. 

Ickes, 393 F.3d 501 (4th Cir. 2005) "treated a [basic] search of 

a computer as a routine border search, requiring no individualized 

suspicion for the search").

B. The Scope of Searches Permitted under the Border Search 

Exception

Plaintiffs next argue that border searches of electronic 

devices "must be limited to searches for contraband." This 

argument is premised on plaintiffs' assertions that the border 

search exception (a) extends only to searches aimed at preventing 

the importation of contraband or entry of inadmissible persons 

and (b) covers only searches for contraband itself, rather than 

10 Plaintiffs argue that because a basic border search can 

take place over an extended period, "the policies place no limit 

on the scope of a basic search." This claim is not supported by 

the record. As laid out in the complaint, basic searches are 

limited to "allocated space physically resident on an electronic 

device that is accessible using the native operating system of the 

device." And the agencies must process the entry of over one 

million travelers per day, further restricting the practical 

limits of a basic search.
- 20 -

for evidence of border-related crimes or contraband. The argument 

fails and its premises are incorrect. 

In non-border contexts the Supreme Court has held that 

warrantless searches "must be limited in scope to that which is 

justified by the particular purposes served by the exception." 

Florida v. Royer, 460 U.S. 491, 500 (1983) (plurality opinion); 

see also Riley, 573 U.S. at 386. Riley did not purport to extend 

this rule to the border search context. Even assuming arguendo 

that the analysis used in Riley applies here, such an analysis

would only require that warrantless border searches be tethered to 

"the longstanding right of the sovereign to protect itself by 

stopping and examining persons and property crossing into this 

country."11 Flores-Montano, 541 U.S. at 152 (quoting United States

v. Ramsey, 431 U.S. 606, 616 (1977)). Further, the Supreme Court 

has repeatedly said that routine searches "are reasonable simply 

by virtue of the fact that they occur at the border." Id. at 152-

53 (quoting Ramsey, 431 U.S. at 616). This is so because the 

government's interest in preventing crime at international borders 

"is at its zenith," see id., and it follows that a search for 

evidence of either contraband or a cross-border crime furthers the 

purposes of the border search exception to the warrant requirement.

11 Plaintiffs do not challenge any specific law enforced by 

CBP or ICE as having no relationship to the border search 

exception's broad purposes. 
- 21 -

As for advanced searches, we cannot reasonably conclude

that the "substantive limitations imposed by the Constitution" on 

the border search exception prevent Congress from giving border 

agencies authority to search for information or items other than 

contraband. Ramsey, 431 U.S. at 620; see also Kolsuz, 890 F.3d at

152 (Wilkinson, J., concurring in the judgment) ("[T]here is a 

longstanding historical practice in border searches of deferring 

to the legislative and executive branches."). To the contrary, 

Montoya de Hernandez makes clear that the border search exception's 

purpose is not limited to interdicting contraband; it serves to 

bar entry to those "who may bring anything harmful into this 

country" and then gives as examples "whether that be communicable 

diseases, narcotics, or explosives." 473 U.S. at 544.

Congress is better situated than the judiciary to 

identify the harms that threaten us at the border.12 Kolsuz, 890 

F.3d at 152 (Wilkinson, J, concurring in the judgment) ("[Riley

does not] begin to answer the question of who should strike the 

balance between privacy and security at the border of the

12 As explained by Judge Wilkinson, "[w]e have no idea of 

the dangers we are courting" at the border. Kolsuz, 890 F.3d at 

152 (Wilkinson, J., concurring in the judgment). He notes the 

risk that "[p]orous borders are uniquely tempting to those intent 

upon inflicting the vivid horrors of mass casualties" and "the 

danger of highly classified technical information being smuggled 

out of this country only to go into the hands of foreign nations 

who do not wish us well and who seek to build their armaments to 

an ever more perilous state." Id. 
- 22 -

country."); see also Riley, 573 U.S. at 408 (Alito, J., concurring 

in part and concurring in the judgment) (stating with respect to 

the reasonableness of warrantless searches of mobile phones that 

"[l]egislatures . . . are in a better position than we are to 

assess and respond to the changes that have already occurred and 

those that almost certainly will take place in the future"). In 

weighing the competing policy considerations, Congress or the 

Executive may choose to strike a different balance as to border 

searches of electronic devices and may choose to grant greater 

protection than required by the Constitution. 

As to plaintiffs' distinction between evidence of 

contraband and contraband itself, the border search exception is 

not limited to searches for contraband itself rather than evidence

of contraband or a border-related crime. Searching for evidence 

is vital to achieving the border search exception's purposes of 

controlling "who and what may enter the country." Ramsey, 431 

U.S. at 620; see also Aigbekaen, 943 F.3d at 721 (holding that the 

purposes of the border search exception are "protecting national 

security, collecting duties, blocking the entry of unwanted 

persons, [and] disrupting efforts to export or import contraband" 

(emphasis added)); United States v. Gurr, 471 F.3d 144, 149 (D.C. 

Cir. 2006) (holding in the context of the border search exception 

that "[t]he distinction that [plaintiff] would draw between 
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contraband and documentary evidence of a crime is without legal 

basis").13

We acknowledge that our holdings on both of these points

are contrary to the Ninth Circuit's holdings in United States v. 

Cano. 934 F.3d at 1018 (holding that the border search exception 

"is restricted in scope to searches for contraband"). We cannot 

agree with its narrow view of the border search exception because 

Cano fails to appreciate the full range of justifications for the 

border search exception beyond the prevention of contraband itself 

entering the country. Advanced border searches of electronic 

devices may be used to search for contraband, evidence of 

contraband, or for evidence of activity in violation of the laws 

enforced or administered by CBP or ICE. 

13 Plaintiffs cite Boyd, 116 U.S. 616, for the proposition 

that the border search exception does not extend to searching for 

evidence of border-related crimes. But the Supreme Court rejected 

in Warden, Md. Penitentiary v. Hayden the distinction articulated 

in Boyd between searches for "mere evidence" and searches for 

"instrumentalities, fruits of crime, or contraband." 387 U.S. 

294, 301 (1967). Plaintiffs argue that Hayden only rejected this 

distinction in relation to searches authorized by a warrant rather 

than warrantless searches, but we conclude that Hayden should be 

more broadly applied. See United States v. Molina-Isidoro, 884 

F.3d 287, 297 n.7 (5th Cir. 2018) (Costa, J., specially concurring) 

("Hayden is viewed as a broad rejection of the 'mere 

evidence'/instrumentality distinction" (citing Wayne LaFave, 

Search & Seizure, A Treatise on the Fourth Amendment § 4.1(c))).

But see id. ("[T]here are reasons to believe the [mere 

evidence/instrumentality] distinction still matters when it comes 

to border searches."). 
- 24 -

C. Device Detention

Plaintiffs further argue that the CBP and ICE Policies 

violate the Fourth Amendment because they do not impose an 

"effective limit on [the] duration" of electronic device 

detentions.14 Plaintiffs' argument is in the abstract as they have 

not presented any facts concerning the actual retention of devices 

pursuant to the policies at issue. 

The CBP Policy permits an officer to "detain electronic 

devices or copies of information contained therein, for a brief, 

reasonable period of time to perform a thorough border search." 

CBP Policy at 7. Supervisory approval is required to detain 

devices after the device owners "departure from the port or other 

location of detention." Id. The ICE Policy permits the detention 

of "electronic devices, or copies of information therefrom [for] 

a reasonable time given the facts and circumstances of the 

particular search." ICE Directive at 4. Both Policies require 

supervisory approval to extend a device detention beyond an initial 

span of time -- five days under the CBP Policy and thirty days 

under the ICE policy. CBP Policy at 7; ICE Directive at 5.

14 Because we conclude that no reasonable suspicion is 

required for a basic border search of an electronic device, we 

need not reach plaintiffs' contention that the Policies are 

deficient in allowing the agencies to detain devices without 

reasonable suspicion. 
- 25 -

The nature of plaintiffs' challenge is unclear. The 

Policies permit detention for only a reasonable period, which is

the constitutional test. See Montoya de Hernandez, 473 U.S. at 

544. If the argument is that "reasonable" must be replaced with 

hard time limits, the Supreme Court has rejected that proposition. 

Id. at 543. If the argument is that the judgment as to 

reasonableness should not be left in the first instance to the 

agent who conducts the search, that misreads the Policies. The 

CBP Policy requires a supervisor's permission to detain a device

after its owner leaves the border, a higher level of supervisory 

approval to extend a detention for longer than five days, and a 

third level of approval to extend a detention beyond fifteen days. 

CBP Policy at 7. What is reasonable is surely fact specific and 

future as applied attacks are not foreclosed should there be 

abuses.15 

D. First Amendment

Plaintiffs next argue that under the First Amendment,

government searches of electronic devices at the border require a 

warrant, or at least reasonable suspicion. They contend that 

because electronic devices may contain sensitive personal data, 

the threat of warrantless or suspicionless border searches will 

15 Plaintiffs do not develop the argument that any 

individual detention of any plaintiff's electronic device was 

unreasonable, but instead say that several particularly long 

detentions demonstrate that the Policies are facially deficient.
- 26 -

impermissibly chill speech.16 They further argue that such 

searches unduly interfere with the First Amendment freedoms to 

"'engage in association' . . . without government scrutiny, . . . 

speak anonymously, . . . receive unpopular ideas, confidentially 

and without government scrutiny, . . . read books and watch movies 

privately . . . [and] gather and publish newsworthy information 

absent government scrutiny." 

Because plaintiffs seek relief "beyond [their] 

particular circumstances," "they must 'satisfy [the] standards for 

a facial challenge to the extent of that reach.'" Proj. Veritas 

Action Fund v. Rollins, 982 F.3d 813, 826 (1st Cir. 2020) (emphasis 

omitted) (quoting John Doe No. 1 v. Reed, 561 U.S. 186, 194 

(2010)). Thus, plaintiffs must show that "a substantial number of 

[the ICE and CBP Policies'] applications are unconstitutional, 

16 Plaintiffs purport to rely on United States v. Ramsey, 

431 U.S. 606 (1977), but misunderstand the case. In Ramsey, 

plaintiffs argued that the search of international mail was a 

violation of the First Amendment. The applicable law allowed the 

search of international mail only where there was "'reasonable 

cause to believe' that customs laws [were] being violated prior to 

the opening of envelopes" and a regulation forbade the "reading of 

correspondence absent a search warrant." Id. at 623 (emphasis 

added). The Supreme Court held that under those circumstances, 

the opening of international mail did not "impermissibly chill[] 

the exercise of free speech." Id. at 624. 

The court explicitly reserved and did not decide the 

question of whether the search of international mail, "in the 

absence of the regulatory restrictions" would chill speech and, if 

it did, "whether the appropriate response would be to apply the 

full panoply of Fourth Amendment requirements." Id. at 624 n.18. 
- 27 -

judged in relation to the statute's plainly legitimate sweep." 

United States v. Stevens, 559 U.S. 460, 473 (2010) (quoting Wash. 

State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 n.6 

(2008)).

The First Amendment provides protections -- independent 

of the Fourth Amendment -- against the compelled disclosure of 

expressive information. See Buckley v. Valeo, 424 U.S. 1, 64 

(1976); Tabbaa v. Chertoff, 509 F.3d 89, 102 n.4 (2d Cir. 2007) 

(analyzing First Amendment challenge to targeted border searches 

independently of Fourth Amendment); Ramsey, 431 U.S. at 623-24. 

Neither this circuit nor the Supreme Court has specified the 

appropriate standard to assess alleged government intrusions on 

First Amendment rights at the border. See Ramsey, 431 U.S. at 

623-24 (refusing to "consider the constitutional reach of the First 

Amendment in this area"); see also Tabbaa, 509 F.3d at 102 n.5 

("It may also be true that the First Amendment's balance of 

interests is qualitatively different where, as here, the action 

being challenged is the government's attempt to exercise its broad 

authority to control who and what enters the country.").

Under any standard plaintiffs have not shown that the 

content-neutral border search Policies facially violate the First 

Amendment. See Ramsey, 431 U.S. at 623 ("More fundamentally, 

however, the existing system of border searches has not been shown 

to invade protected First Amendment rights, and hence there is no 
- 28 -

reason to think that the potential presence of correspondence makes 

the otherwise constitutionally reasonable search 'unreasonable.'"

(footnote omitted)). The Policies have a plainly legitimate sweep 

and serve the government's paramount interests in protecting the 

border.17

Nor, as plaintiffs contend, does the presence of 

expressive material on electronic devices "trigger[] a warrant 

requirement." A higher level of suspicion is not generally 

required to search potentially expressive materials. See New York

v. P.J. Video, Inc., 475 U.S. 868, 875 (1986); United States v. 

Brunette, 256 F.3d 14, 16 (1st Cir. 2001) (holding the probable 

cause standard "is no different where First Amendment concerns may 

be at issue"); see also Ickes, 393 F.3d at 507 (refusing to apply 

a different standard to border searches of expressive material); 

United States v. Arnold, 533 F.3d 1003, 1010 (9th Cir. 2008) 

(same).

As explained by the Ninth Circuit in Arnold, providing 

a different standard for "expressive material" at the border would

17 Plaintiffs do not present the issue of whether the First 

Amendment would require a different outcome if CBP and ICE were 

targeting journalists or using border searches to pierce attorneyclient privilege. Two plaintiffs are journalists, but they do not 

contend that they were searched by CBP for this reason. See

Alasaad, 419 F. Supp. 3d at 169. This decision does not foreclose 

a future as applied First Amendment challenge in such 

circumstances. See Ortiz-Graulau v. United States, 756 F.3d 12, 

21 (1st Cir. 2014) (noting that this court may leave open "the 

possibility of a future as-applied challenge"). 
- 29 -

(1) protect terrorist communications "which 

are inherently 'expressive'"; (2) create an 

unworkable standard for government agents who 

"would have to decide -- on their feet -- which 

expressive material is covered by the First 

Amendment"; and (3) contravene the weight of 

Supreme Court precedent refusing to subject 

government action to greater scrutiny with 

respect to the Fourth Amendment when an 

alleged First Amendment interest is also at 

stake.

533 F.3d at 1010 (quoting Ickes, 393 F.3d at 506). Plaintiffs'

First Amendment challenge fails.

E. Expungement

Plaintiffs argue they are entitled to expungement of any 

data obtained in violation of the Constitution. The district 

court's refusal to grant the equitable remedy of expungement is 

reviewed only for abuse of discretion. Reyes v. DEA, 834 F.2d 

1093, 1098-99 (1st Cir. 1987). 

There was no abuse of discretion here. The district 

court adequately justified its conclusions that expungement was 

not warranted. And contrary to plaintiffs' assertions, it was not 

error for the district court to analogize to caselaw regarding the 

suppression of evidence.

IV. Conclusion

We affirm in part, reverse in part, vacate in part, and 

remand for the entry of a revised judgment consistent with this 

opinion. No costs imposed.