An Eighth Circuit appeal addressing the constitutionality of warrantless electronic device searches at the border
On July 20, 2022, the Knight Institute and the Reporters Committee for Freedom of the Press submitted an amicus brief in United States v. Xiang, a criminal prosecution that relied on evidence obtained from a warrantless electronic device search at the border. The defendant, Haitao Xiang, moved to suppress the evidence on the grounds that warrantless electronic device searches are unconstitutional.
In support of Xiang’s appeal, the amicus brief explained the particular burdens that electronic device searches place on journalists, whose cell phones, laptops, and digital cameras contain sensitive newsgathering information, including the names and communications of their confidential sources. It also explained how electronic device searches burden the First Amendment rights and chill the expressive activities of all travelers, citing documents obtained by the Knight Institute through FOIA litigation in Knight First Amendment Institute v. Dep’t of Homeland Security. The brief urges the Eighth Circuit to conclude that, because of the heightened expressive and associational burdens they impose, warrantless electronic device searches at the border violate the First and Fourth Amendments.
Status: On May 5, 2023, the Eighth Circuit upheld Mr. Xiang's conviction, concluding that CBP did not need a warrant to search, seize, and detain Mr. Xiang's electronic devices, and that the agency had reasonable suspicion for the extended search it conducted.
Case information: Xiang v. United States, No. 22-1801 (8th Cir.).