NEFAC, Media Groups Argue First Amendment Protections for Journalists at U.S. Borders

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The New England First Amendment Coalition recently argued that the First Amendment prohibits suspicionless searches of electronic devices at the country’s borders and protects journalists from government surveillance of their laptops and cellphones.

In an Aug. 7 amicus brief — drafted by the Knight First Amendment Institute at Columbia University and the Reporters Committee for Freedom of the Press — NEFAC and fellow amici explain that:

“Personal electronic devices have become extensions of the human mind. Cell phones and laptops store enormous volumes of individuals’ expressive materials: their draft work product, private thoughts, associations and professional relationships, and digital records of their whereabouts and communications with others. Suspicionless searches of these devices at the border raise constitutional questions that analog-era precedents cannot answer. Because of the scale and sensitivity of the information stored on these devices, government searches of them pose a grave threat to the First Amendment freedoms of the press, speech, and association.”

The brief was filed in Alasaad v. Wolf, a case currently before the U.S. Court of Appeals for the First Circuit. The case involves 10 U.S. citizens and one lawful permanent resident who were subjected to searches of their electronic devices at the border. These plaintiffs were reentering the country from business or personal travel when border officers searched their devices without a warrant or any suspicion of wrongdoing.

“These searches inevitably burden speech and association,” argued NEFAC and fellow amici. “As in the context of government surveillance more generally, when individuals fear that their speech will be scrutinized by the government, they will be less inclined to speak.”

Suspicionless searches at the border are particularly problematic for journalists, the amici added.

“Because electronic devices are necessary to newsgathering, searches of these devices effectively force reporters to disclose First Amendment–protected information to the government,” they wrote in the brief. “Electronic device searches are highly invasive, especially for journalists. The contents of electronic devices can reveal the stories a journalist is developing, with whom she is communicating, and her specific travel plans. Disclosure of such information can expose sensitive newsgathering methods and deter potential sources from speaking to members of the media.”

NEFAC regularly files and joins amicus briefs in cases involving First Amendment freedoms and the public’s right to know about government. All coalition briefs, advocacy letters and statements can be found here.

NEFAC was formed in 2006 to advance and protect the Five Freedoms of the First Amendment, including the principle of the public’s right to know. We’re a broad-based organization of people who believe in the power of an informed democratic society. Our members include lawyers, journalists, historians, academics and private citizens.

Our coalition is funded through contributions made by those who value the First Amendment and who strive to keep government accountable. Please make a donation here.

Major Supporters of NEFAC include Hearst Connecticut Media Group, The Boston Globe, Paul and Ann Sagan, WBUR, Boston University and the Robertson Foundation.