Fourth Amendment

Another Federal Court Allows Warrantless Cellphone Searches at U.S. Border

It’s time for SCOTUS to revisit the "border search exception" to the Fourth Amendment.

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If you possess a cellphone on U.S. soil, the Fourth Amendment generally prevents law enforcement officials from searching your phone's contents without a warrant. But what happens if you carry a cellphone at the U.S. border while returning from a trip outside the country? Does the Fourth Amendment also stop border agents from warrantlessly snooping inside your device?

Not according to a pair of recent federal court opinions. "Border searches never require a warrant or probable cause," said the U.S. Court of Appeals for the 11th Circuit in a 2018 case, United States v. Vergara. That ruling centered on a U.S. citizen whose cellphones were subjected to warrantless forensic searches at the border, a highly intrusive procedure that typically involves retrieving deleted files and other inspections of a phone's digital records.

The U.S. Court of Appeals for the 9th Circuit reached a similar conclusion about warrantless cellphone searches at the border last week. "Border officials may conduct suspicionless manual searches of cell phones," the 9th Circuit held in United States v. Cano, "but must have reasonable suspicion before they conduct a forensic search." Unlike probable cause, which is the standard required for obtaining a search warrant, reasonable suspicion is a more lenient rule that lets law enforcement officials conduct searches without getting a warrant first.

The U.S. Supreme Court has long recognized a "border search exception" to the Fourth Amendment's normal warrant requirement. But the Court has yet to address whether that exception deserves to hold sway in the current era of smartphones and related high-tech devices.

It is one thing, after all, to let border agents rummage through your suitcase or through the trunk of your car without a warrant. It is something else to let those same agents download and examine every digital record on your cellphone—a treasure trove of highly sensitive personal information—without at least getting a warrant first.

Judge Jill Pryor, the lone dissenter in the Vergara case, suggested a good way for the federal courts to handle the issue going forward. "Due to the extreme intrusion into privacy posed by a forensic cell phone search," Pryor wrote in her Vergara dissent, "my answer to the question of what law enforcement officials must do before forensically searching a cell phone at the border…'is accordingly simple—get a warrant.'"

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  1. Or Congress could actually legislate to prohibit border cell-phone searches.

    Fourth Amendment protections are a floor, not a ceiling.

    1. Congressmen don’t get their cellphones searched at the border. And they’ll prioritize a single child porn conviction over a thousand innocents having their privacy invaded every time.

  2. It is one thing, after all, to let border agents rummage through your suitcase or through the trunk of your car without a warrant. It is something else to let those same agents download and examine every digital record on your cellphone

    No, kind of the same thing.

    1. Kind of. But the purpose of the border controls is to collect duties and prevent contraband and unauthorized aliens from entering the country. And to do that effectively, they need to see what you are physically carrying. There is no such justification for looking at pure information. I don’t think there is any restriction on what information a US citizen can bring into the country. Searching electronic devices is just spying on the person, which, especially in the case of a citizen, is not relevant to their duties enforcing immigration and customs laws.

      1. I suppose one way around this is to prohibit the CBP from enforcing anything but an extremely narrow set of laws (such as those regarding import restrictions, tariffs, immigration, etc.) so that they cannot effectively have a general warrant to search for any crimes.

        Better yet would be to recognize that this is essentially a general warrant and therefore unacceptable under 4A, but we can dream.

        1. Better yet would be to recognize that this is essentially a general warrant and therefore unacceptable under 4A, but we can dream.

          It’s not a “general warrant” because it is not used for legal proceedings; it is used to determine whether you are actually eligible to enter the country.

          I suppose one way around this is to prohibit the CBP from enforcing anything but an extremely narrow set of laws

          Congress is free to do that any time they want. However, for now, the law of the land is what it is and that’s why courts decide the way they do.

          I would like the power of border agents narrowed somewhat; I don’t want it to be done by the courts or by executive order.

          1. The failure in your logic is that what you have on your phone has nothing whatsoever to do with the determination of whether you are eligible to enter the country.

            You could plausibly argue that searches of vehicles were permitted to check for unauthorized people. And you could plausibly argue that searches of containers were permitted to check for contraband or to enforce taxes and tariffs. No such plausible argument can be made for the bits and bytes on an electronic harddrive.

            Bluntly put, the Supreme Court was wrong when it established the “border search exception” and the subordinate courts have been consistently wrong by extending it.

      2. Kind of. But the purpose of the border controls is to collect duties and prevent contraband and unauthorized aliens from entering the country. And to do that effectively, they need to see what you are physically carrying. There is no such justification for looking at pure information.

        A big part of US immigration law (and the immigration law of other nations for that matter) is to determine your intent. And as part of that, border agents can ask pretty much everything they like, search you, and request background information on you. Based on what border agents do right now and what they are supposed to do, your cell phone is as much a legitimate target as your panties. That’s the legal situation right now.

        Now maybe it shouldn’t be like that, but it is. If you want to change it, you shouldn’t hope for judicial activism, but instead actually get the laws changed.

    2. Can they search your papers at the border without a warrant?

  3. Which border are we talking about? The actual borders with Mexico and Canada, or the 100-mile region surrounding all points pf entry (ports and international airports) that INS recognizes?

    1. The actual border isn’t 100 miles wide. So they go with the bigger zone.

  4. I hate to agree with this, but in the current climate of what happens at the border, I’m not sure a cell phone is functionally different than my suitcase.

    I’m not making any statements about the moral righteousness of it, but if I get my suitcase searched when I cross the border, I presume my cell phone is up for grabs as well.

    1. Except you can’t carry contraband or smuggle stuff that requires duties to be paid in your phone. The point of searching your suitcase is (supposed to be) to stop dangerous or illegal items from entering the country and to collect import duties.

      1. Except you can’t carry contraband or smuggle stuff that requires duties to be paid in your phone.

        I’m not sure if that’s true. I agree that 90% of everything they’re looking for is “drugs” and “weapons”, but ‘contraband’ certainly covers much more than that. If we accept that when entering a port of entry that they’re going to not only search you for contraband, but also inspect your documents– and any other identifying items on you to see if you’re an international criminal, then the phone seems like something border agents would be interested in.

        For example, it’s illegal to transport child pornography into the states. Presuming few people are going to carry in 8 x 10 glossies, or a rubber band-wrapped stack of Polaroids in their suitcase, then the phone or electronic device is the logical place to look.

        All I’m saying here is that there’s been a precedent for many a decade that when you cross the border, your bags and person can be searched sans warrant. I’m guessing the courts realized that if they required a warrant to search the phone, then someone would rightly stand up and say, “ok then, you need a warrant for my bag too” and the government doesn’t like to weaken the institution– they want to preserve it. Because if they’d have said the phone was off limits without a warrant, I would have been the first person standing up and screaming about the need for a warrant to check my bags. Which as a libertarian I’m perfectly willing to entertain that.

        1. For example, it’s illegal to transport child pornography into the states. Presuming few people are going to carry in 8 x 10 glossies, or a rubber band-wrapped stack of Polaroids in their suitcase, then the phone or electronic device is the logical place to look.

          Agreed, but presumably it would be transmitted over the internet rather than through a courier.

          1. Presumably I’d have my drugs clandestinely moved across the border in tunnels, boats or unlit aircraft in the dark of night. Yet they still search my bags for them when crossing a port of entry in the light of day with my daughter in tow.

            1. I don’t think that that is a very good analogy. The internet already exists and is a much more efficient means of transmitting contraband information (indeed, it’s easy to hide because the internet also transmits a great deal of legitimate information). This is not remotely comparable with the means of transporting physical contraband, which are expensive and far more detectable (therefore one would expect them to be used less as a proportion).

              I don’t oppose enforcement of anti-CP laws, of course. I just think that making the border a “quick let’s check for any crimes we can find since we don’t need a warrant” zone is not a good idea, especially since it is now easily extended to cover most of the US population.

              1. Your papers and effects are subject to search when you cross a border. Again, separating whether we should have ever allowed the search of anything is a separate subject, but given the way it IS vs how it SHOULD be, I don’t see separating the search of some items from others merely because one runs on electricity and the other doesn’t. I’m not immune to being convinced that the phone is somehow special and can remain walled off from your suitcase, the trunk of your car, your pockets, your backpack and any other papers you have on your person. But for now, I see it as a part of the whole.

                1. Your papers shouldn’t be subject to search at all though. What could you possibly carry in a folder that would be dangerous or taxable? it makes no sense.

                  1. and really, border searches should be about security, not contraband. just ask people to fill out a form declaring they have nothing illegal, or anything to declare. if they commit a crime and are apprehended and can be proven to have lied on the form, they can be charged with another crime later.

          2. **Agreed, but presumably it would be transmitted over the internet rather than through a courier.**

            I have a mate who works (elbow deep) for NZ Customs. He says a suprising number of child molesters still try to bring in physical media – i.e. photos or USB sticks.

        2. I should further say, that even if you’re correct, that their primary focus is physical contraband, you still need a warrant to search my duffel bag if I’m walking down the street (inside the 100 air-mile zone around the border). The fact that it’s a physical item doesn’t diminish (no increase IMHO) the need for a warrant. The only real question here is if crossing a port of entry is special– and I think the feds and the courts have decided it is.

          I do believe that there was a case covered here at Reason where someone crossed through a port of entry– they neglected to search his bag, then chased after him once he was inside the ‘safe zone’ and he refused the search because NOW you need a warrant. Not sure about the details and how that turned out.

          1. and I think the feds and the courts have decided it is.

            I think they have, yes–but I think they are wrong and should reverse their stance in light of a plain reading of the Constitution.

          2. I think you’re sadly mistaken about them needing a warrant. They can put up roadblocks on the freeway.

  5. National sovereignty of the United States dictates that the federal government has the power to set rules about entry and exit from its national borders.

    This supposed 100-miles region surrounding ports of entry is different and unconstitutional.

    This is different than domestic spying without a warrant which is unconstitutional.

    1. But is there any limit to what they can do at the border in your reading of the constitution? Could they, for example, require that everyone take off all of their clothes and stick a carrot up their butts to enter the country?
      Maybe they do have completely arbitrary powers at the border. If that’s the case, I would hope that congress would do something to keep it within reason.

  6. Not only cell phones, but your computers / tablets can be searched at will also. You may also not get them back. This is not recent this has been going on for a long time.

    Not sure about the “100 mile” thing, but at customs, yes.

    What was explained to me, if your in the customs area you are really not considered to be in the U.S. and don’t have rights granted by the Constitution. Not sure how true this is, expect of the electronics searching.

    1. Constitutional prohibitions on Government behavior don’t magically stop while you wait in the customs line.

  7. I don’t see a difference between a suitcase, a laptop, or a smartphone. Sorry, but SCOTUS answered this question.

    Don’t like it? Then leave your smartphone home and bring a flip phone on your trip instead.

  8. A search of your trunk or your luggage is different because you might be smuggling actual physical contraband – drugs, bombs, slaves… A search of your cellphone can’t be justified that way, except by stretching “connection to contraband” like taffy and tying it into knots.

    Or unless we’re going back to the antebellum days when the southern States censored anti-slavery writings.

    1. Deep….and what of digital theft? Contraband can now be computer files. People can and do commit crimes that are entirely digital.

  9. I’m glad Apple has a good privacy stance. My phone is locked and there’s no way customs is getting into it since I just wouldn’t tell them the passcode and don’t have touchID

    1. They will just keep your phone.

    2. If they really want inside it, they’ll get in side it. Your passcode can pound sand. So encrypt anything on your phone you don’t want the feds to see.

      1. actually, no they can’t. 10 tries and they’re locked out.

    3. This (strong password protection and encryption) becomes the next question.

      Are they going to break out the water bucket and bamboo strips to torture your password out of you?

      Are they just going to steal your phone and pay their contractors hundreds of dollars to crack it, when they don’t have any actual reason to suspect that you are violating any law?

      Does this become a situation where just like (other?) unwanted intrusions, they decide it’s not worth the fishing expedition, and move on to the next – easier – target?

      I didn’t read the opinion, do they mention this issue?

  10. >>>It is one thing … your suitcase or … the trunk of your car … something else … your cellphone—a treasure trove of highly sensitive personal information

    more sensitive info *might be* in the suitcase. alternatively not everyone keeps their world on their phone.

  11. I think this brings up the related (and I guess more interesting issue) of what they are allowed to do with encrypted data on a phone. Is CBP allowed to compel you (and with what penalty, assuming you are a returning citizen?) to decrypt the data?

    1. This has been covered here at Reason. If they have probable cause, they can compel you to reveal the code, however you can claim you forgot it– and I believe there’s a court precedent that says there’s no realistic way to “prove” you actually know it when you claim you don’t.

      1. It has been covered in cases of criminal investigations with a warrant or court order, if I recall correctly, but not in the warrant/Constitution-free zone of the border checkpoint. Maybe I missed that particular case, but it would seem especially egregious to compel decryption without a warrant.

        1. The bottom line for me is, encrypt anything you don’t want BP eyes to see when crossing a port of entry, and be prepared to lose the data and/or the device if you refuse or “can’t remember” the decryption keys.

  12. A search without a warrant?
    Gee, who would’ve thought that would happen in the Union of Soviet Socialist Slave States of America?

  13. Where exactly in the Bill of Rights, or specifically the 4th amendment does it specify a location in which the government can ignore those rights?

    The Bill of rights is a document that says what the Federal government CANNOT DO. It doesn’t give locations, and it doesn’t specify subsets of people (citizens vs non-citizens).

    So if the US Federal government cannot search my phone without a warrant in my neighborhood, they sure as hell shouldn’t be able to search my phone at a border crossing or on some other non-US Soil.

    1. “Where exactly in the Bill of Rights, or specifically the 4th amendment does it specify a location in which the government can ignore those rights?”
      The same place it says you have to pay hundreds of dollars and get a permit to actually have a restricted set of second amendment rights. And do you actually HAVE a fourth amendment permit? If not they can search anything anywhere, right? Do you have a free speech permit to post here?
      The US Constitution is like the Pirate Code; “It’s just a guideline, actually”

  14. The Fourth Amendment, like the rest of the Constitution, only means what the judiciary says it means. We don’t have a Constitution, just a bunch of words that our real rulers–unelected judges in office for life–interpret as they see fit on any given day. If the the judges can’t find the words to support the diktatthey want to issue, they emanate penumbras out the back of their robes.

  15. So, do a back up to the cloud, wipe your phone, and leave it open.

    How does crossing the border with data on my phone differ from crossing the border with the same data on the cloud?

  16. How long until we see “Live PD: Border Patrol”?

  17. That’s funny, because I read the 4th Amendment again today, and I don’t see anything about an exclusion zone near the border.

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