This is the second in a series of blog posts regarding Customs and Border Protection searches of digital devices.
Imagine you live in the western United States and are planning a vacation to Europe, returning with a connecting flight somewhere on the east coast. When you arrive in the U.S., the government may invoke the Border Search Exception to search — and even fully copy — your electronic devices, all without a warrant. But because of the chaotic state of Fourth Amendment law for border searches, you’ll face one rule if you fly into Logan International Airport in Boston, an entirely different rule if you arrive at Hartsfield Airport in Atlanta, and a third rule if you land in Dulles Airport outside Washington DC. A fourth rule will govern searches if you land at JFK or LaGuardia Airport in New York City, but if you land just outside New York at Newark International Airport, a fifth rule applies. And if you opt to avoid a connecting flight and land directly on the west coast, a sixth rule will be used.
With the stakes as high as the government being able to copy every sensitive email, photo, and document on your phone — without a warrant— how has the law become so convoluted? It is because each of those airports are located in a different appellate court’s jurisdiction, and those courts have disagreed on the scope of the Border Search Exception to the Fourth Amendment’s warrant requirement.
Warrantless border searches became a feature of U.S. law long ago, well before the digital age. The power of Customs agents to search property entering the United States was established in the late 1700s, and the Supreme Court acknowledged warrantless border search authority in cases in the late 19th century and early 20th century. It formally recognized border searches by Customs agents as an exception to the Fourth Amendment’s warrant requirement in the 1977 case U.S. v. Ramsey.
This out-of-date rule, created to help detect dangerous contraband as it is smuggled into the country, is a poor fit for the digital age and dangerously broad when applied to personal electronic devices like smart phones. Now that individuals carry as much sensitive information in their pocket as they could possibly store in their entire home, the Border Search Exception needs an update.
In 2014 the Supreme Court addressed this precise problem for another exception to the Fourth Amendment’s warrant requirement: searches conducted during arrests. The Court refined the Search Incident To Arrest Exception to the warrant requirement, blocking its application to electronic devices. It noted that “Cell phones differ in both a quantitative and a qualitative sense from other objects” individuals carry and that “[p]rior to the digital age, people did not typically carry a cache of sensitive personal information with them as they went about their day.” Though these same considerations apply at the border, the Supreme Court has not yet stepped in to similarly limit the Border Search Exception to the Fourth Amendment’s warrant requirement. Instead, the law has become a complex patchwork, with appellate courts setting out a range of rules.
Border searches of electronic devices may involve only a manual search of the device, but can also involve downloading the contents of the device so the copy of the contents can be reviewed later. These “forensic searches” leave Customs and Border Protection (CBP) in possession of a full copy of all the data on a device, allowing the government to stockpile a shocking amount of private data absent probable cause. A 2022 Congressional inquiry revealed that CBP copies thousands of phones each year, retaining their data for 15 years in a database that can be freely searched by over 2,700 DHS personnel “at any time, for any reason.”
This gives the government access to a treasure trove of sensitive private information: text messages and emails, photos and videos, medical and financial documents, logs of web activities, and any other data and documents stored on smartphones. DHS (and any other agency with which it shares access) possessing and freely sifting through this warrantless surveillance database is alarming in general, and especially dangerous given the Administration’s efforts to jail and deport lawful migrants for their political speech.
Forensic searches conducted pursuant to the Border Search Exception have received broad scrutiny in court, with five separate U.S. Circuit Courts issuing rulings on their use: The First, Fourth, and Ninth Circuits have ruled that forensic searches require reasonable suspicion. In contrast, the Eighth and Eleventh Circuits have ruled that no suspicion is required. The remaining seven Circuits have not yet established firm rules on border searches of electronic devices. (The impact of these rulings is displayed in the map above.)
CBP policy adopted in 2018 generally requires reasonable suspicion to conduct forensic searches even in areas of the country where the courts have not ruled that such suspicion is constitutionally required. However, the privacy value of this policy should be treated with skepticism for several reasons. First, as an internal agency directive, CBP could water-down or fully revoke the policy at any time. Second, under the policy the reasonable suspicion requirement does not apply to situations “in which there is a national security concern.” CBP personnel could interpret this vague exemption quite broadly to conduct forensic searches without reasonable suspicion. And finally, even when it is applied, the reasonable suspicion standard leaves significant discretion to agents. They do not need independent sign off from a judge that the required level of suspicion actually exists, and the policy itself indicates that it does not create a cause of action for people whose devices are searched without reasonable suspicion.
Courts that have required reasonable suspicion have also restricted the purpose for which forensic searches can be initiated. Specifically, the First Circuit limits forensic searches to suspicion of border-related crimes (i.e., suspicion that the search “will turn up contraband, evidence of contraband, or evidence of activity in violation of the laws enforced or administered by CBP or ICE”). The Fourth Circuit more narrowly limits forensic searches to suspicion of ongoing border-related crimes. Meanwhile, the Ninth Circuit limits forensic searches to evidence of digital contraband (e.g., child sexual abuse material or stolen data).
This has resulted in a patchwork system for forensic searches, with five different legal regimes for forensic border searches, as shown in the map below:
While forensic searches pose the greatest threat to privacy under the Border Search Exception, manual searches — in which an officer looks through an electronic device without using equipment or software to copy or analyze data — still significantly endanger privacy. These manual searches can still easily pull up private messages, notes, photos, videos, and other items stored on phones and laptops.
This can have severe consequences, even for innocuous activities. For example, in March a French scientist was blocked from entering the United States apparently because border agents searched his phone and discovered private communications criticizing the Trump administration’s research policies. And in June a Norwegian tourist was barred from entering the U.S., seemingly in reaction to border agents discovering a meme mocking Vice President JD Vance while searching his phone.
Manual searches conducted pursuant to the Border Search Exception have not been restricted at the federal appellate court level; however in recent years they have been subject to a range of rulings — including especially promising ones — by federal district courts within the Second Circuit. In 2023, the Southern District of New York ruled in United States v. Alisigwe that manual searches of electronic devices when crossing the border must be based on reasonable suspicion. And in a separate case that same year, United States v. Smith, the Southern District went further and ruled that any search of electronic devices was not covered by the Border Search Exception, and required a full probable cause warrant. In 2024 the Eastern District of New York issued a similarly privacy-protective ruling in United Stated v Sultanov, holding that a full warrant was required to search electronic devices when crossing the border. However in recent years the Eastern District has also issued rulings upholding warrantless border searches of electronic devices in U.S. v. Kamaldoss and United States v. Gavino.
The Second Circuit, which hears cases appealed from federal district courts in New York state, will soon rule on some of these cases — it heard oral arguments in Alisigwe on March 28 and in Kamaldoss on March 31 — and presumably will issue its own rule on the application of the Border Search Exception to searches of electronic devices. Embracing the theory that the Border Search Exception to the Fourth Amendment’s warrant requirement should not apply to electronic devices (as courts did in Smith and Sultanov) would be a major victory for privacy rights, but also create an even more complex legal patchwork across the country.
At some point the Supreme Court must inevitably take up the question of how the Border Search Exception applies to electronic devices. But with no case currently before the Court, the United States may be years away from having a nationwide rule on this important issue. Another way to remedy this problem would be for Congress to step in. Last Congress (as well as in several prior Congresses), Senators Ron Wyden (D-OR) and Rand Paul (R-KY) introduced the Protecting Data At The Border Act to ban warrantless searches of electronic devices, but the bill has never received a vote. Until either Congress or the Supreme Court acts, privacy rights will be at risk and determined by something as arbitrary as which airport a traveler uses.
