United States v. Xiang

Court: U.S. Court of Appeals for the Eighth Circuit

Date Filed: July 20, 2022

Update: On May 5, 2023, a three-judge panel of the U.S. Court of Appeals for the Eighth Circuit affirmed the district court’s opinion that the search of Haitao Xiang was reasonable.

Background: In 2017, U.S. Customs and Border Protection officials conducted a search of Haitao Xiang, a former scientist for the agrochemical company Monsanto, as he was about to board a plane to visit his family in China. Border officials seized six of Xiang’s electronic devices and sent them to the FBI to perform a forensic search for evidence of intellectual property theft. The FBI did not obtain a warrant authorizing the search and seizure until seven days after the devices were searched and 17 days after they were seized.

Upon returning to the United States in 2019, Xiang was arrested and charged with conspiracy to commit economic espionage based on evidence obtained through the forensic imaging of his devices.

Xiang filed a motion to suppress evidence collected during the warrantless searches. But a federal district court denied Xiang’s motion in 2021, holding that a warrant wasn’t required for searches that take place at international borders. Xiang then appealed the decision to the U.S. Court of Appeals for the Eighth Circuit.

Our Position: The Reporters Committee and the Knight First Amendment Institute at Columbia University urge the Eighth Circuit to hold that the government’s search of Xiang’s electronic devices was unconstitutional and reverse the lower court’s decision to deny Xiang’s motion to suppress evidence collected through warrantless searches of his devices.

• Government searches of electronic devices at the border burden core First Amendment freedoms.
• Warrantless searches of electronic devices at the border violate the First Amendment.
• The First Amendment implications of electronic device searches at the border require scrupulous adherence to the Fourth Amendment warrant requirement.

Quote: “A warrant, and nothing short of it, is necessary to safeguard the newsgathering activities of journalists and the speech and associational rights of travelers.”

Related: The Reporters Committee and the Knight First Amendment Institute have previously jointly filed friend-of-the-court briefs in support of lawsuits challenging the constitutionality of warrantless searches of electronic devices at the U.S. border, including in Alasaad v. Wolf.