PPSA has long reported on the suspension of the Fourth Amendment at the border. Americans often find upon re-entering the United States that the contents of their digital devices are subject to being scanned and recorded, just as agents are free to riffle through our luggage.
This is not a rare event. Customs and Border Patrol reports that digital scanning hit a high of almost 45,500 device searches at airports, seaports, and land borders in 2022.
Now our civil liberties coalition partners at the Electronic Frontier Foundation – who’ve long advocated for a warrant requirement to search electronic devices – report that a district court judge in New York has “made history” by being the first court to require a warrant for a cellphone search at the border.
This has been a gray area because federal courts have inconsistently applied Riley v. California to the border. This is the 2014 Supreme Court ruling that requires a warrant for cellphone inspections because these devices hold “the privacies of life." In that Supreme Court opinion, the Court held that police may conduct a warrantless search of an arrestee to look for weapons or to prevent the destruction of evidence. But to review the contents of a cellphone requires a warrant. Federal Judge Jed S. Rakoff in his opinion on Tuesday drew on the “logic and analysis” of Riley.
Judge Rakoff noted that border agents saved an electronic copy of the contents of a cellphone owned by an American returning to New York from Jamaica. Only after they reviewed the contents did they apply for and obtain a search warrant. He wrote:
“While border agents have very substantial latitude to search a person’s body and effects without a warrant or probable cause during a border cross, the Supreme Court has now made clear that searching the data contained on a person’s cell phone is not like searching his body or his pockets. Rather, searching a cell phone will often allow law enforcement to learn all there is to know about its owner’s past movements, communications, and transactions – reams of information that differ quantitatively and qualitatively from the sorts of information a person could ever have carried with him before the advent of the ‘smart’ phone.”
Much like the Supreme Court in allowing warrantless searches for weapons, the judge did not extend the warrant requirement to an American’s “effects” at the border, upholding the court-created “border search exception.”
Instead, Judge Rakoff wrote that, unlike “a traveler’s luggage or cargo – which, quite obviously, is not yet in the country at the time the traveler presents herself for inspection at the border and can therefore be stopped from coming in – the information on that traveler’s phone most likely already exists outside the phone (in cloud storage or other backups), such that a border search is far less likely to actually prevent anything unwanted from entering or leaving the country.”
He concluded that it would be contrary to the Fourth Amendment to “extend the Government’s reach far beyond the person and luggage of the border-crosser – as if the fact of a border crossing somehow entitled the Government to search that traveler’s home, car, and office. The border search exception does not extend so far.”
This is welcome news that should establish a final standard for the protection of our most sensitive digital information at the border. All civil liberties advocates are in debt to EFF – as well as to the ACLU – for years of advocacy before the courts on this issue.