The border search exception of the Fourth Amendment is erroneously interpreted by the U.S. government to permit warrantless and often suspicionless searches of travelers’ electronic devices, including their cellphones and laptops at the border. The doctrine originated in the government’s need to determine if persons at the border are permitted to enter the U.S. and whether they are carrying contraband. When then applied to electronic devices this exception permits normatively disastrous and unreasonable results. A search of an electronic device can reveal associations, political and religious beliefs, travel history and interests, or as the Supreme Court put it,“the privacies of life.”
The government shouldn’t be allowed to conduct these digital strip searches at the border without a warrant. We said exactly that to the First Circuit Court of Appeals in an amicus brief we filed along with the Brennan Center for Justice, TechFreedom, and R Street in Alasaad v. Wolf. The Plaintiffs in Alasaad, represented by our friends at the ACLU and EFF, are 10 U.S. citizens and a lawful permanent resident whose electronic devices were searched by border agents, some of which were confiscated, and many of whom had data from these searches retained in government databases. The Court of Appeals is hearing a cross-appeal of the District Court of Massachusetts’s ruling that electronic device searches at the border require reasonable suspicion of contraband. The government appealed because it thought this too protective and Plaintiffs appealed because they thought it not protective enough by falling short of a warrant requirement. We agree with Plaintiffs. Our amicus brief argues that the District Court erred by not mandating a warrant as a prerequisite of a device search and that the Court of Appeals should so rule. In the alternative, we urged the Court to uphold the District Court’s ruling. CDT previously filed an amicus brief when the case was before the District Court highlighting the scope and sensitivity of information available when border officials search electronic devices. The need for heightened protections at the border is great. In recent years, these warrantless border searches have increased. In FY 2016 CBP conducted 19,051 device searches, and in FY 2019 that number skyrocketed to 40,913.
U.S. Customs and Border Protection (CBP) policy on searches of electronic devices differentiates between manual (basic) and forensic (advanced) searches. A manual search is one in which an official uses their fingers and eyes to search the device. In a forensic search, external equipment is connected to a device to review, copy, or analyze the contents. Under the policy, CBP agents may conduct a manual search absent any suspicion, and an advanced search upon a showing of “reasonable suspicion,” however there is a major exemption for searches conducted for national security. U.S. Immigration and Customs Enforcement (ICE)’s public border search policy allows agents to perform either type of search without any suspicion. However, in the course of litigation, ICE has indicated that its agents conduct advanced searches only when there is reasonable suspicion. Both agencies claim broad authority to retain and share information from these device searches. The government’s border search policies rely on dated cases that permit suspicionless searches of luggage and the like to support the argument that the border search exception to the Fourth Amendment’s warrant requirement should extend to searches of electronic devices.
Alasaad v. Wolf
Plaintiffs in Alasaad filed suit almost three years ago challenging warrantless searches of their electronic devices at the border under the Fourth Amendment. They argued that the warrant requirement at the border is supported by the Supreme Court’s opinion in Riley v. California, in which the Supreme Court held that the “search incident to arrest” exception, allowing warrantless searches after arrests, did not justify dispensing with the warrant requirement for searches of arrestees’ cell phones.
In November, the District Court issued a historic opinion determining that reasonable suspicion of contraband was required for both manual and forensic device searches. The Court was persuaded by the application of Riley and undertook the balancing test that the case is now famous for in assessing exceptions to the Fourth Amendment’s warrant requirement. That balancing calls for “assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interest.” The District Court acknowledged that the government’s interests at the border are “paramount” but cabined these interests to enforcement of customs laws, not “general law enforcement purposes.” Furthermore, the government’s interest at the border is the identification of contraband itself, not evidence of contraband. The kinds of contraband that can be found on electronic devices includes child exploitation material, but the District Court noted that the record and assertions from the government provided no information as to the prevalence of border searches being used to identify such materials, or the frequency with which such searches turn up such material. Indeed, CDT helped secure statutory reporting obligations that would compel the government to disclose such information, which has thus far not been complied with.
The Court recognized that manual searches of electronic devices implicate significant privacy interests and, like forensic searches, should require reasonable suspicion to justify the search. This went farther than both ICE and CBP policy regarding manual searches of electronic devices, because neither of those policies required reasonable suspicion and neither of those policies confined border searches of digital devices to the search for contraband actually on the device. This ruling wasn’t limited to U.S. persons but also applied to foreign travelers as well: “the Court declares that the CBP and ICE policies for ‘basic’ and ‘advanced’ searches, as presently defined, violate the Fourth Amendment to the extent that the policies do not require reasonable suspicion that the devices contain contraband…”
A Warrant Is Needed To Adequately Protect Privacy Interests At the Border
We hope the First Circuit Court of Appeals will be the first to rule that a warrant is the appropriate balance between the government’s interests in effectuating its responsibilities at the border, and the individual’s privacy interests in their electronic devices and the information therein contained. Our brief argues that the government can quickly secure warrants when needed, and that in the case of an emergency, the government can rely upon the “exigent circumstances” exception to the warrant requirement. Furthermore, we agree with the District Court that electronic device searches do not serve the justification for the border search exception. Instead, numerous stories over the years reflect the unique vulnerability of individuals in ports of entry and illustrate the need for judicial checks on unfettered executive discretion to invade travelers’ privacy. Relying on the government to self-police will be inadequate, as audits of CBP’s border search practices identified that the agents routinely violate CBP border search policy and the Constitution.
A number of Circuits have acknowledged the sensitivity of these device searches in the border context. The 9th Circuit in United States v. Cotterman (9th Cir. en banc 2013) held that reasonable suspicion was required prior to a forensic search. Recently, a panel of judges in the 9th Circuit in Cano v. United States (9th Cir. 2019) held that while a manual search does not require individualized suspicion, both manual and forensic searches are only permissible to determine if the device contains digital contraband— a significant limitation on border searches. An appeal for a rehearing before all of the judges on the 9th Circuit is currently pending. The Fourth Circuit in United States v. Kolsuz (2018), rooting its opinion in the reasoning of Riley, held that, “a forensic border search of a phone must be treated as non-routine, permissible only upon a showing of individualized suspicion.” The Court didn’t opine on the level of suspicion needed for these searches and also left the door open for requiring individualized suspicion for a manual search. However, some Circuits have gone in the other direction. The 11th Circuit refused to recognize the need for any individualized suspicion in United States v. Touset (2018) holding that “searches at the border of the country ‘never require probable cause or a warrant,’” determining that Riley was not applicable because that case did not involve the border exception. The Eleventh Circuit dismissed privacy concerns and said that, “[i]f anything, the advent of sophisticated technological means for concealing contraband only heightens the need of the government to search property at the border unencumbered by judicial second-guessing,” citing the necessity of searches of electronic devices to prevent the dissemination of child exploitation material.
Ultimately, given the circuit split, it seems likely that this issue will reach the Supreme Court sooner rather than later. However, while the courts have been taking the lead on this issue, we hope Congress will legislate in this space. Legislation heightening protections for travelers at the border have been introduced in this Congress. Senators Ron Wyden (D-Or) and Ron Paul (R-KY) introduced S. 1606, the Protecting Data at the Border Act, which would require the government to get a warrant prior to searching the device of a U.S. person, and provides a means for law enforcement to get a warrant after the fact in emergency circumstances. Senators Patrick Leahy (D-Vt) and Steve Daines (R-Mont) introduced S. 2694, A bill to place restrictions on searches and seizures of electronic devices at the border, which would require a warrant as a prerequisite to an advanced search, and reasonable suspicion that the traveler violated an immigrations or customs law and that the electronic device contains evidence relevant to the violation as a prerequisite to a manual search. Both bills are an improvement to current CBP and ICE policy.
We are grateful to Kurt Wimmer, Rafael Reyneri, Calvin Cohen, and Frank Broomell of Covington & Burling LLP for representing us on this brief.
Read the brief here.