The Fourth Circuit issued a disappointing opinion in U.S. v. Belmonte Cardozo, a case in which EFF filed an amicus brief, alongside the national ACLU, its Maryland, North Carolina, South Carolina, and Virginia affiliates, and the National Association of Criminal Defense Lawyers (NACDL).
We argued that electronic device searches at the border should require a warrant based on probable cause, but at minimum, regardless of whether an officer searches by hand or with forensic software that plugs into a device and downloads its entire contents for search, the same Fourth Amendment standard should apply to all device searches at the border.
Unfortunately, the court rejected that argument and ruled that a lower standard applies to manual searches, allowing the government to conduct extraordinarily invasive electronic device searches without any suspicion of wrongdoing, simply because the border officer chooses to search by hand rather than with a forensic tool.
The Border Search Exception Meets Your Phone
The Fourth Amendment requires that government searches of persons or property be reasonable, which usually means obtaining a warrant based on probable cause from a judge.
But a warrantless search can still be reasonable if it falls within an exception to the warrant requirement, including the exception that allows officers to search your belongings at the border. The border search exception allows warrantless searches of persons or property crossing the U.S. border, including the functional equivalent of the border such as international airports, given the government’s interests in controlling who and what may enter the country.
Historically, courts have categorized border searches of luggage, vehicles, and personal effects as “routine” and thus reasonable even if conducted without any suspicion that the traveler has engaged in wrongdoing; courts have also held that more invasive “nonroutine” searches, such as certain body searches and searches that damage property, require reasonable suspicion.
But a person’s privacy interests in the personal data on a phone or laptop are extraordinarily different than their limited privacy interests in the contents of their suitcase.
The Supreme Court addressed cell phone privacy in Riley v. California (2014), holding that the search-incident-to-arrest exception to the warrant requirement did not apply to cell phones, thereby generally requiring a warrant for phone searches, at least at the interior of the country. The court recognized the unprecedented privacy interests people have in their cell phones and how even brief manual searches can reveal the “sum of an individual’s private life,” including our political affiliations, religious beliefs, sexuality, and more. Accordingly, the Supreme Court held that because electronic device searches bear “little resemblance” to searches of bags or physical containers, they should be evaluated differently.
Following Riley, the Fourth Circuit considered two border device search cases involving forensic searches, in which border officers used external software to extract and analyze a device’s data.
In U.S. v. Kolsuz (2018), the Fourth Circuit held that a forensic search of a cell phone at the border “must be considered a nonroutine border search, requiring some measure of individualized suspicion” of a transnational offense, but the court declined to decide whether the standard is only reasonable suspicion or instead a probable cause warrant.
Then in U.S. v. Aigbekaen (2019), the Fourth Circuit held that a forensic device search at the border in support of a purely domestic law enforcement investigation requires a warrant. The court also reiterated the general Kolsuz rule for a forensic border-related device search: the “Government must have individualized suspicion of an offense that bears some nexus to the border search exception’s purposes of protecting national security, collecting duties, blocking the entry of unwanted persons, or disrupting efforts to export or import contraband.”
In Belmonte Cardozo, manual searches were finally before the court.
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