Reasonable Suspicion Required For Searches at the Border

This month, Judge Denise J. Casper issued a decision, Alasaad v. Nielsen, No. 17-cv-11730-DJC (D. Mass. Nov. 12, 2019), denying in part and granting in part the Defendants' motion for summary judgment. The Plaintiffs alleged that searches of United States citizens' electronic devices at ports of entry violated the Fourth Amendment and the First Amendment, and that copies made of the contents of the devices, passwords, and social media information should be expunged. The Court held that if these searches constitute non-routine searches, reasonable suspicion is required.

U.S. Customs and Border Protection requires reasonable suspicion for advanced searches, which it defines a searches that involve connecting external equipment (with a wire or wireless connection) to a device for the purpose of copying or analyzing data. A basic search is one that uses a device's own operating system and search tools and can review metadata. An advanced search is one which can recover deleted data, encrypted data, or make a copy of data saved to the device. Most of the searches at issue in this case took place at airports.

The CBP's Automated Targeting System allows it to access copies of data obtained from electronic devices obtained at past border searches, which shows ongoing and future harm and gives standing to seek expungement. While individuals have a reduced expectation of privacy at the border, the Court noted that digital evidence stored on personal electronic devices has limited usefulness in determining whether or not a person is a U.S. citizen, and only limited types of contraband can be stored on the devices. Even though warrants have not been required for searches of electronic devices, recent decisions have categorized forensic searches of digital devices as non-routine searches.

The Court cited the Supreme Court decision in Riley v. California, 573 U.S. 373 (2014) in finding that smartphones present a new privacy paradigm that means far more private information is exposed in searches of them than even in a search of home. "The potential level of intrusion from a search of a person’s electronic devices simply has no easy comparison to non-digital searches." Alasaad, at *29. It noted that the number of electronic searches performed by CBP is very small.

The Court accepted a cursory search of a smartphone to verify a person's identity would fall within the border search exception. However, in discussing the CBP's distinction between basic and advanced searches, the Judge Casper concluded that, "the Court concludes that agents and officials must have reasonable suspicion to conduct any search of entrants’ electronic devices under the 'basic' searches and 'advanced' searches as now defined by the CBP and ICE policies." Id. at *33. It did not find that a warrant supported by probable cause was needed for such searches.

Judge Casper did not find a remedy of ordering the data to expunged was warranted, where the evidence obtained in violation of the Constitution will be suppressed.

Rule 45 and Producing ESI More Than 100 Miles Away

Federal Rule of Civil Procedure 45(c)(2)(A) specifies that a subpoena on a non-party may only compel the, "production of documents, electronically stored information, or tangible things at a place within 100 miles of where the person resides, is employed, or regularly transacts business in person." Earlier this year, in Mackey v. IDT Energy, Inc., No. 19 Misc. 29 (PAE), 2019 U.S. Dist. LEXIS 77101 (S.D.N.Y. May 7, 2019), Judge Paul Engelmayer issued a decision granting in part and denying in part a motion to quash a subpoena. The motion was filed by Fluent, LLC which received a subpoena from the Plaintiff, in a class action suit filed in the Northern District of Illinois relating to the violation of federal law for the making of unsolicited calls with an automatic dialing system. A motion for class certification had not been filed at the time of the decision. The subpoena sought text messages; telephone records; data on website usage; and all communications regarding the litigation. The subpoena called for the production of documents in Boston and Fluent was based in New York.

Judge Engelmayer rejected Fluent's contention that the subpoena was invalid because it requested production more than 100 miles away. "Federal courts have universally upheld, as consistent with the Rule, this production mode—in which the subpoenaed entity, at all times acting within 100 miles of its office, uploads documents for retrieval by counsel for the party who issued the subpoena." Id. at *10. He noted Fluent's failure to cite any cases holding that FTP transfer of ESI would violate the 100 mile rule, and referenced several authorities saying it would not.

The request for all communications regarding the litigation between Fluent and any third party was quashed as being "completely untailored", and "dominantly to seek irrelevant documents". Id. at *16. It also quashed requests for documents that were not relevant to the Plaintiff's claims and were only for the class action, on account of undue burden.

M.D. Fla.: Search Hits in File Fragments Leads to Adverse Inference Instruction

Today, Judge Philip R. Lammens issued a decision, Nationwide Life Ins. Co. v. Betzer, No: 5:18-cv-39, 2019 U.S. Dist. LEXIS 194165 (M.D. Fla. Nov. 8, 2019), granting the Plaintiff's motion for sanctions for the spoliation of evidence and issuing an adverse inference instruction.

In this case concerning a dispute about annuity contracts, a forensic examination showed that the Defendants' computer contained relevant documents that should have been produced pursuant to a document request. The examination showed that documents had been accessed shortly before a document production by the Defendants in the case, and that deletion software had been run on some of their computers and the drives had been defragmented pursuant to user commands - not as part of an automatic process. Using proximity searches for key witness names, the examiner was able to find hundreds of relevant hits in fragments of files that had either just been deleted or from those that had been erased.

The Court found that the Defendants were able to reasonably foresee that litigation would arise when the data was deleted and considered that fact that "the deliberate and systematic use of commercial deletion software suggests Defendants were both technically sophisticated and were aware that their actions would erase material from their computers." as a factor in showing there was an obligation to preserve under Rule 37(e). Id. at *26. The forensic examination showed that the most of the relevant information had been lost and could not be replaced through data restoration or additional discovery. In finding that the Defendants acted in bad faith and with the intent to deprive that resulted in prejudice to the Plaintiff, Judge Lammens pointed out that, "Marcy Betzer's forensic expert opined that 25% of potentially relevant information was lost from Smith's computer and 97% of potentially relevant information (equating to more than 2,000 files) was lost from Robinson's computer". Id. at *33.

The Court ordered that the jury be given an instruction that the evidence lost from the computers was unfavorable to the Defendants, and also awarded costs and fees related to the failure to produce the documents, and well as the sanctions motion itself.