Sophia Cope writes:
With United States v. Smith (S.D.N.Y. May 11, 2023), a district court judge in New York made history by being the first court to rule that a warrant is required for a cell phone search at the border, “absent exigent circumstances” (although other district courts have wanted to do so).
EFF is thrilled about this decision, given that we have been advocating for a warrant for border searches of electronic devices in the courts and Congress for nearly a decade. If the case is appealed to the Second Circuit, we urge the appellate court to affirm this landmark decision.
The Border Search Exception as Applied to Physical Items Has a Long History
U.S. Customs & Border Protection (CBP) asserts broad authority to conduct warrantless, and often suspicionless, device searches at the border, which includes ports of entry at the land borders, international airports, and seaports.
For a century, the Supreme Court has recognized a border search exception to the Fourth Amendment’s warrant requirement, allowing not only warrantless but also often suspicionless searches of luggage and other items crossing the border.
The number of warrantless device searches at the border and the significant invasion of privacy they represent is only increasing. In Fiscal Year 2022, CBP conducted an all-time high of 45,499 device searches.
The Supreme Court has not yet considered the application of the border search exception to smartphones, laptops, and other electronic devices that contain the equivalent of millions of pages of information detailing the most intimate details of our lives—even though we asked them to back in 2021.
Circuit Courts Have Narrowed the Border Search Exception’s Application to Digital Data
Federal appellate courts, however, have considered this question and circumscribed CBP’s authority.
The Ninth Circuit in United States v. Cano (2019) held that a warrant is required for a device search at the border that seeks data other than “digital contraband” such as child pornography. Similarly, the Fourth Circuit in United States v. Aigbekaen (2019) held that a warrant is required for a forensic device search at the border in support of a domestic criminal investigation.
These courts and the Smith court were informed by Riley v. California (2014). In that watershed case, the Supreme Court held that the police must get a warrant to search an arrestee’s cell phone.
The Smith Court Rightly Applied the Riley Balancing Test
In our advocacy, we have consistently argued that Riley’s analytical framework should inform whether the border search exception applies to cell phones and other electronic devices. This is precisely what the Smith court did: “In holding that warrants are required for cell phone searches at the border, the Court believes it is applying in straightforward fashion the logic and analysis of Riley to the border context.”
In Riley, the Supreme Court applied a balancing test, weighing 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 modern cell phones.
In analyzing the government’s interests, the Riley Court considered the traditional reasons for authorizing warrantless searches of an arrestee’s person: to protect officers from an arrestee who might use a weapon against them, and to prevent the destruction of evidence.
The Riley Court found only a weak nexus between digital data and these traditional reasons for warrantless searches of arrestees. The Court reasoned that “data on the phone can endanger no one,” and the probability is small that associates of the arrestee will remotely delete digital data.
The Riley Court also detailed how modern cell phones can in fact reveal the “sum of an individual’s private life,” and thus individuals have significant and unprecedented privacy interests in their cell phone data.
On balance, the Riley Court held that the traditional search-incident-to-arrest exception to the warrant requirement does not apply to cell phones.
The Smith court properly applied the Riley balancing test in the border context, noting that travelers’ privacy interests in their digital data are also significant:
Just as in Riley, the cell phone likely contains huge quantities of highly sensitive information—including copies of that person’s past communications, records of their physical movements, potential transaction histories, Internet browsing histories, medical details, and more … No traveler would reasonably expect to forfeit privacy interests in all this simply by carrying a cell phone when returning home from an international trip.
In analyzing the government’s interests in gaining warrantless access to cell phone data at the border, the Smith court considered the traditional justifications for the border search exception: in the words of the judge, “preventing unwanted persons or items from entering the country.” In particular, the government has a strong interest in conducting warrantless searches of luggage and other containers to identify goods subject to customs duty (import tax) and items considered contraband or that would otherwise be harmful if brought into the country such as drugs or weapons.
Considering these traditional rationales for the border search exception in the context of modern cell phones, the Smith court concluded that the government’s “interest in searching the digital data ‘contained’ on a particular physical device located at the border is relatively weak.”
The court focused on the internet and cloud storage, stating: “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.” This is different from physical items that if searched without a warrant may be efficiently interdicted, and thereby actually prevented from entering the country.
The Smith court further explained:
To be sure, that data may contain information relevant to the Government’s determination as to whether a person should be allowed entry, but the Government has little heightened interest in blocking entry of the information itself, which is the historical basis for the border search exception.
Thus, the Smith court concluded:
Because the government’s interests in a warrantless search of a cell phone’s data are thus much weaker than its interests in warrantless searches of physical items, and a traveler’s privacy interests in her cell phone’s data are much stronger than her privacy interests in her baggage, the Court concludes that the same balancing test that yields the border search exception cannot support its extension to warrantless cell phone searches at the border.
EFF’s Work Is Making a Difference
The Smith court also cited Cano, in which the Ninth Circuit engaged extensively with EFF’s amicus brief even though it didn’t go as far as requiring a warrant in all cases. The Smith court acknowledged that no federal appellate court “has gone quite this far (although the Ninth Circuit has come close).”
We’re pleased that our arguments are moving through the federal judiciary and finally being embraced. We hope that the Second Circuit affirms this decision and that other courts—including the Supreme Court—are courageous enough to follow suit and protect personal privacy.
This article originally appeared on EFF.