In recent years, the US Department of Justice (DOJ) has brought an increasing number of cases aimed at combating economic espionage as part of its China Initiative. This effort has included cases against scientific researchers working at American universities for alleged failures to disclose foreign ties or funding and against efforts to smuggle federally funded research to China. While federal prosecutors have charged a number of academic researchers across the United States with a variety of crimes, many of these cases have one thing in common: The charges stem from a search of the researcher’s physical luggage or electronic devices at an airport.
For instance, in January 2020, the government charged Yanquing Ye, a lieutenant of the People’s Liberation Army (PLA) and member of the Chinese Communist Party, with falsely identifying herself as a “student” at Boston University and lying on a visa application about her ongoing military service. In fact, prosecutors allege that Ms. Ye continued to work for the PLA in the United States, conducting research, assessing US military websites, and sending documents and information to China. The charges followed an interview of Ms. Ye at Boston’s Logan International Airport and a search of her electronic devices that revealed extensive communications between Ms. Ye and a PLA officer, including specific taskings.
That same day, prosecutors announced charges against Zaosong Zheng, a cancer researcher at a major Boston medical center, for allegedly stealing 21 vials of biological research and attempting to smuggle them out of the United States. Federal officers at Logan Airport allegedly discovered the vials hidden in a sock in Mr. Zheng’s luggage as he was attempting to fly to China.
In June 2020, Xin Wang, a scientific researcher at the University of California at San Francisco (UCSF), was arrested at Los Angeles International Airport for visa fraud. According to the government, Wang was interviewed by federal agents as he was preparing to depart the country for China. During the interview, Wang stated that he was a PLA officer and was carrying some of his UCSF research work with him back to China to share with PLA researchers.
These cases are just a few examples of the recent China Initiative cases DOJ has brought based largely on the evidence discovered during airport border searches. While the number of these cases has been on the rise, US Attorney Andrew Lelling has referred to the cases announced so far as only “the tip of the iceberg.” John Demers, the Assistant Attorney General for National Security, has explained, “[T]he Justice Department will continue to prioritize investigations like these, to ensure that China understands that this criminal conduct is not an acceptable business or economic development practice.” And as DOJ does so, border searches, conducted by Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE), will remain one of its most essential investigative tools.
But while the three cases identified above represent successful border searches where evidence was actually found, there are countless more where innocent travelers have been questioned and devices seized and examined without results. Academic researchers and visiting students have described being targeted by CBP agents, aggressively questioned, and having their devices taken from them. Often, these encounters have led to missed flights and months without laptops or cellphones, and the critical information contained on them.
This article describes the current state of the law related to border searches. In particular, this article will focus on the law as it pertains to CBP’s and ICE’s authority to seize and examine electronic devices and recent legal challenges to that authority that could ultimately change the landscape for these searches. The article concludes with a discussion of practical advice for educational institutions, companies, and other organizations to help their researchers, students, and employees prepare to travel to and from the United States.
The Current State of the Law
Although the US Constitution prohibits warrantless searches under most circumstances, the US Supreme Court has long recognized a “border search exception” that allows broader latitude in protecting the integrity of the border. See United States v. Ramsey, 431 U.S. 606, 620 (1977). The government has a “paramount interest in maintaining ‘territorial integrity’ at the border” in order to regulate trade, protect national security, and prevent illegal smuggling of people and contraband. See Alasaad v. Nielsen, 419 F. Supp. 3d 142, 156 (D. Mass. 2019). Accordingly, “individuals have a reduced expectation of privacy at the international border,” which includes airports. See id. While there is some uncertainty as to the permissible scope of warrantless searches at the border, “the border search exception is not limitless.” Id. at 155. Courts have construed this exception to permit the search of a person, their checked and carry-on luggage (Ramsey, 431 U.S. at 618) and—perhaps most notably—electronic devices for all individuals, including US citizens.
For their parts, CBP and ICE each have adopted policies distinguishing between “basic” searches and “advanced” border searches. See Alasaad, 419 F. Supp. 3d at 148–49. “Basic” searches, which each agency defines as “any border search that is not an advanced search,” do not require any suspicion. Id. Typically, that involves a manual review of a phone or laptop where an agent scrolls through the unlocked device, looking for contraband. On the other hand, “advanced” searches are defined 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. Advanced searches typically involve the seizure of the electronic device and a forensic review usually done off-site. Under both the CBP and ICE policies, advanced searches require reasonable...
