Feds May Need Warrants To Search Cell Phones at the Border After All

Snooping through emails, video, and photos isn’t the same as stumbling on containers full of cocaine.

The role of smart phones as snitches is well-established, with people paying for their handy communications capabilities while the treacherous devices track us and reveal details of our lives. Even as the government spoofs cellphone towers to locate phone users, or purchases commercial data about our movements, border agents also insist they can, at will, search the phones of Americans returning home. But last month a federal judge ruled that a free pass to probe electronic devices is too broad, and that Americans enjoy some protections at the border of the sort they have elsewhere.

In this latest case, United States v. Smith, Jatiek Smith, the subject of a federal investigation, was stopped at the airport in Newark on his return from Jamaica. As detailed by U.S. District Judge Jed S. Rakoff, federal agents "forced him to turn over his cellphone and its password. They reviewed the phone manually and created and saved an electronic copy of it as it existed as of that date and time – all without a search warrant."

Wait. No warrant? Unfortunately, yes.

Border Search Exception

The U.S. Supreme Court long ago recognized (or created out of whole cloth) a "border search exception" to the Fourth Amendment. The rationale is that the government is protecting the country's sovereignty by controlling the entry of people and goods into the country.

Time marched on and people began carrying electronic devices with them across the border that contained sensitive correspondence, private documents, pictures, recorded interviews, and the equivalent of full access to people's lives and activities. But the law didn't catch up quickly.

"Border searches never require a warrant or probable cause," 11th Circuit Court of Appeals Judge William H. Pryor wrote as recently as 2018 in the case of United States v. Vergara.

Customs and Border Protection isn't shy about using this power. In 2022, it conducted 45,499 device searches at entry points, up from 33,296 in 2018.

Relative to the total number of people crossing the border, that may not be a lot of searches. But it means that it's open season on anybody who attracts the U.S. government's attention. Laura Poitras, who won an Academy Award for her documentary about Edward Snowden, sued the U.S. government after repeated interrogations and searches when she entered the country.

Such incidents prompted some lawmakers to call, unsuccessfully, for a statutory requirement for warrants during border searches. And courts did begin pushing back.

The Fourth Amendment Gets a Little Respect

"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," Sophia Cope, senior staff attorney for the Electronic Frontier Foundation (EFF), explains. "Federal appellate courts, however, have considered this question and circumscribed CBP's authority."

Cope points to rulings that require warrants during border searches of electronic devices that seek evidence for domestic criminal investigations, or for anything other than "digital contraband" that is, arguably, being smuggled into the country. Those cases were informed by Riley v. California (2014) in which the U.S. Supreme Court ruled that police must get warrants to search the phones of those they've arrested. Those developments significantly improved the respect accorded people's expectations of privacy in their electronic devices.

In Smith, Judge Rakoff builds on those earlier precedents to find that the data on electronic devices is protected by the Fourth Amendment, even at the border. That means that warrants are required. One important consideration is the broad access to people's lives offered by searching devices.

Emails Aren't Contraband

"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 modern 'smart' phones," Rakoff wrote.

The judge also noted that nabbing an electronic device isn't really comparable to intercepting crates of contraband before they enter the country.

"When the Government interdicts contraband, identifies goods subject to customs tax, or prevents someone from entering the country without authorization, it successfully stops a person or thing outside the country from unlawfully coming into it. But data stored on a cell phone is not like that – it instead can and very likely does exist not just on the phone device itself, but also on faraway computer servers potentially located within the country," Rakoff noted. "Stopping the cell phone from entering the country would not, in other words, mean stopping the data contained on it from entering the country."

The judge found that the rationales for a border search exception don't really apply to electronic data stored on electronic devices—especially given the magnitude of the privacy implications from nosing through private information. He found that warrants are required for such searches and suppressed evidence in the case that resulted from illegally probing the defendant's phone.

"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," writes Cope in analyzing the ruling. "If the case is appealed to the Second Circuit, we urge the appellate court to affirm this landmark decision."

Too Soon to Declare Victory

Of course, that's the caveat. This is a district court ruling over matters that judges elsewhere have seen very differently. This case may well be litigated for years to come as it works its way up the judicial food chain. It will have to pass muster at the appellate level and then, hopefully, win approval by the Supreme Court.

But the trend in terms of recognizing Fourth Amendment protections for data at the border has been positive. Incrementally, the courts are admitting that snooping through emails, video, and photos isn't the same as stumbling on containers full of cocaine (not that there's anything wrong with cocaine). So, there's grounds for optimism about the prospects for a degree of electronic privacy when returning home from trips abroad.

That said, your phone is still a snitch.