EFF Tells the Second Circuit a Second Time That Electronic Device Searches at the Border Require a Warrant

EFF, along with ACLU and the New York Civil Liberties Union, filed a second amicus brief in the U.S. Court of Appeals for the Second Circuit urging the court to require a warrant for border searches of electronic devices, an argument EFF has been making in the courts and Congress for nearly a decade.

The case, U.S. v. Smith, involved a traveler who was stopped at Newark airport after returning from a trip to Jamaica. He was detained by border officers at the behest of the FBI and his cell phone was forensically searched. He had been under investigation for his involvement in a conspiracy to control the New York area emergency mitigation services (“EMS”) industry, which included (among other things) insurance fraud and extortion. He was subsequently prosecuted and sought to have the evidence from his cell phone thrown out of court.

As we wrote about last year, the district court made history in holding that border searches of cell phones require a warrant and therefore warrantless device searches at the border violate the Fourth Amendment. However, the judge allowed the evidence to be used in Mr. Smith’s prosecution because, the judge concluded, the officers had a “good faith” belief that they were legally permitted to search his phone without a warrant.

The number of warrantless device searches at the border and the significant invasion of privacy they represent is only increasing. In Fiscal Year 2023, U.S. Customs and Border Protection (CBP) conducted 41,767 device searches.

The Supreme Court has recognized for a century a border search exception to the Fourth Amendment’s warrant requirement, allowing not only warrantless but also often suspicionless “routine” searches of luggage, vehicles, and other items crossing the border.

The primary justification for the border search exception has been to find—in the items being searched—goods smuggled to avoid paying duties (i.e., taxes) and contraband such as drugs, weapons, and other prohibited items, thereby blocking their entry into the country.

In our brief, we argue that the U.S. Supreme Court’s balancing test in Riley v. California (2014) should govern the analysis here—and that the district court was correct in applying Riley. In that case, the Supreme Court weighed the government’s interests in warrantless and suspicionless access to cell phone data following an arrest against an arrestee’s privacy interests in the depth and breadth of personal information stored on a cell phone. The Supreme Court concluded that the search-incident-to-arrest warrant exception does not apply, and that police need to get a warrant to search an arrestee’s phone.

Travelers’ privacy interests in their cell phones and laptops are, of course, the same as those considered in Riley. Modern devices, a decade later, contain even more data points that together reveal the most personal aspects of our lives, including political affiliations, religious beliefs and practices, sexual and romantic affinities, financial status, health conditions, and family and professional associations.

In considering the government’s interests in warrantless access to digital data at the border, Riley requires analyzing how closely such searches hew to the original purpose of the warrant exception—preventing the entry of prohibited goods themselves via the items being searched. We argue that the government’s interests are weak in seeking unfettered access to travelers’ electronic devices.

First, physical contraband (like drugs) can’t be found in digital data.

Second, digital contraband (such as child pornography) can’t be prevented from entering the country through a warrantless search of a device at the border because it’s likely, given the nature of cloud technology and how internet-connected devices work, that identical copies of the files are already in the country on servers accessible via the internet. As the Smith court stated, “Stopping the cell phone from entering the country would not … mean stopping the data contained on it from entering the country” because any data that can be found on a cell phone—even digital contraband—“very likely does exist not just on the phone device itself, but also on faraway computer servers potentially located within the country.”

Finally, searching devices for evidence of contraband smuggling (for example, text messages revealing the logistics of an illegal import scheme) and other evidence for general law enforcement (i.e., investigating non-border-related domestic crimes, as was the case of the FBI investigating Mr. Smith’s involvement in the EMS conspiracy) are too “untethered” from the original purpose of the border search exception, which is to find prohibited items themselves and not evidence to support a criminal prosecution.

If the Second Circuit is not inclined to require a warrant for electronic device searches at the border, we also argue that such a search—whether manual or forensic—should be justified only by reasonable suspicion that the device contains digital contraband and be limited in scope to looking for digital contraband. This extends the Ninth Circuit’s rule from U.S. v. Cano (2019) in which the court held that only forensic device searches at the border require reasonable suspicion that the device contains digital contraband, while manual searches may be conducted without suspicion. But the Cano court also held that all searches must be limited in scope to looking for digital contraband (for example, call logs are off limits because they can’t contain digital contraband in the form of photos or files).

In our brief, we also highlighted two other district courts within the Second Circuit that required a warrant for border device searches: U.S. v. Sultanov (2024) and U.S. v. Fox (2024). We plan to file briefs in their appeals, as well. Earlier this month, we filed a brief in another Second Circuit border search case, U.S. v. Kamaldoss. We hope that the Second Circuit will rise to the occasion in one of these cases and be the first circuit to fully protect travelers’ Fourth Amendment rights at the border.