The Volokh Conspiracy
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The Eleventh Circuit has handed down an important new ruling on cell phone searches at the border, United States v. Touset. In an opinion by Judge William Pryor, the court disagrees with the Fourth Circuit and Ninth Circuit caselaw requiring suspicion to conduct a forensic search at the border.
The basic issue in these cases is this: When the government seizes a computer or cell phone at the border, and they want to search it using forensic equipment, do they need some sort of suspicion that evidence or contraband is on the device? Or does the traditional border search exception (which ordinarily permits searches of prioperty crossing the border without suspicion) apply? Regular readers of this blog have heard a lot about this question over the years. Just two weeks ago, I wrote a long post on the Fourth Circuit's May 9th ruling in United States v. Kolsuz, by Judge Pamela Harris, which required some kind of suspicion to conduct such a search. And I've blogged extensively about the Ninth Circuit's en banc ruling from 2013 in United States v. Cotterman, authored by Judge Margaret McKeown, which required reasonable suspicion for forensic searches at the border. The new Eleventh Circuit decision disagrees with Kolsuz and Cotterman, arguing that no suspicion should be required for a forensic border search.
Here's the heart of Judge Pryor's reasoning:
The Supreme Court has never required reasonable suspicion for a search of property at the border, however non-routine and intrusive, and neither have we. Although in one decision the Supreme Court required reasonable suspicion for the prolonged detention of a person until she excreted the contraband that she was suspected of "smuggling . . . in her alimentary canal" or submitted to an x-ray or rectal examination, Montoya de Hernandez, 473 U.S. at 541; see also id. at 534– 35, it has never applied this requirement to property. Nor has it "been willing to distinguish . . . between different types of property." Cotterman, 709 F.3d at 975 (Callahan, J., concurring in part, dissenting in part, and concurring in the judgment). Indeed, it held in United States v. Flores-Montano that the government may "remove, disassemble, and reassemble a vehicle's fuel tank" at the border without any suspicion. 541 U.S. 149, 155 (2004). It explained that "the reasons that might support a requirement of some level of suspicion in the case of highly intrusive searches of the person—dignity and privacy interests of the person being searched—simply do not carry over to vehicles." Id. at 152. And it rejected a judicial attempt to distinguish between "routine" and "nonroutine" searches and to craft "[c]omplex balancing tests to determine what [constitutes] a 'routine' search of a vehicle, as opposed to a more 'intrusive' search of a person." Id. We have been similarly unwilling to distinguish between different kinds of property. For example, we have upheld "a search without reasonable suspicion of a crew member's living quarters on a foreign cargo vessel that [wa]s entering this country," Alfaro-Moncada, 607 F.3d at 727, even though "[a] cabin is a crew member's home—and a home 'receives the greatest Fourth Amendment protection,'" id. at 729 (quoting United States v. McGough, 412 F.3d 1232, 1236 (11th Cir. 2005)); accord id. at 732.
We see no reason why the Fourth Amendment would require suspicion for a forensic search of an electronic device when it imposes no such requirement for a search of other personal property. Just as the United States is entitled to search a fuel tank for drugs, see Flores-Montano, 541 U.S. at 155, it is entitled to search a flash drive for child pornography. And it does not make sense to say that electronic devices should receive special treatment because so many people now own them or because they can store vast quantities of records or effects. The same could be said for a recreational vehicle filled with personal effects or a tractor-trailer loaded with boxes of documents. Border agents bear the same responsibility for preventing the importation of contraband in a traveler's possession regardless of advances in technology. Indeed, inspection of a traveler's property at the border "is an old practice and is intimately associated with excluding illegal articles from the country." Thirty-Seven Photographs, 402 U.S. at 376 (plurality opinion)
In contrast with searches of property, we have required reasonable suspicion at the border only "for highly intrusive searches of a person's body." AlfaroMoncada, 607 F.3d at 729. Even though the Supreme Court has declined to decide "what level of suspicion, if any, is required for [such] nonroutine border searches [of a person]," Montoya de Hernandez, 473 U.S. at 541 n.4, we have required reasonable suspicion for "a strip search or an x-ray examination," Alfaro-Moncada, 607 F.3d at 729. We have defined the "intrusiveness" of a search of a person's body that requires reasonable suspicion "in terms of the indignity that will be suffered by the person being searched," in contrast with "whether one search will reveal more than another." United States v. Vega-Barvo, 729 F.2d 1341, 1345 (11th Cir. 1984); accord id. at 1346. And "we have isolated three factors which contribute to the personal indignity endured by the person searched: (1) physical contact between the searcher and the person searched; (2) exposure of intimate body parts; and (3) use of force." Id. at 1346.
These factors are irrelevant to searches of electronic devices. A forensic search of an electronic device is not like a strip search or an x-ray; it does not require border agents to touch a traveler's body, to expose intimate body parts, or to use any physical force against him. Although it may intrude on the privacy of the owner, a forensic search of an electronic device is a search of property. And our precedents do not require suspicion for intrusive searches of any property at the border. See Alfaro-Moncada, 607 F.3d at 728–29, 732.
To be sure, the Fourth and the Ninth Circuits have concluded—in divided decisions—that the Fourth Amendment requires at least reasonable suspicion for forensic searches of electronic devices at the border. United States v. Kolsuz, ___ F.3d ____, No. 16-4687, slip op. at 19 (4th Cir. May 9, 2018); Cotterman, 709 F.3d at 968. In Cotterman, the Ninth Circuit equated a forensic search to "a computer strip search," 709 F.3d at 966, and stated that "[s]uch a thorough and detailed search of the most intimate details of one's life is a substantial intrusion upon personal privacy and dignity," id. at 968. And it reasoned that "[i]ntrusiveness includes both the extent of a search as well as the degree of indignity that may accompany a search." Id. at 967 (quoting United States v. Ramos-Saenz, 36 F.3d 59, 61 n.3 (9th Cir. 1994)). The Fourth Circuit later explained that the intervening decision of the Supreme Court in Riley "confirmed" that reasoning. Kolsuz, slip op. at 21. And it revived the distinction between routine and nonroutine searches of property, see id. at 19–24, that the Supreme Court rejected in Flores-Montano, 541 U.S. at 152.
We are unpersuaded. Although the Supreme Court stressed in Riley that the search of a cell phone risks a significant intrusion on privacy, our decision in Vergara made clear that Riley, which involved the search-incident-to-arrest exception, does not apply to searches at the border. 884 F.3d at 1312 ("[T]he Supreme Court expressly limited its holding to the search-incident-to-arrest exception."). And our precedent considers only the "personal indignity" of a search, not its extensiveness. Vega-Barvo, 729 F.2d at 1346. Again, we fail to see how the personal nature of data stored on electronic devices could trigger this kind of indignity when our precedent establishes that a suspicionless search of a home at the border does not. See Alfaro-Moncada, 607 F.3d at 729, 732. Property and persons are different. See Flores-Montano, 541 U.S. at 152.
We are also unpersuaded that a traveler's privacy interest should be given greater weight than the "paramount interest [of the sovereign] in protecting . . . its territorial integrity." Id. at 153. The Ninth and Fourth Circuits stressed the former interest and asserted that travelers have no practical options to protect their privacy when traveling abroad. For example, the Ninth Circuit explained that it is "impractical, if not impossible, for individuals to make meaningful decisions regarding what digital content to expose to the scrutiny that accompanies international travel" and that "removing files unnecessary to an impending trip" is "a time-consuming task that may not even effectively erase the files." Cotterman, 709 F.3d at 965. The Fourth Circuit added that "it is neither 'realistic nor reasonable to expect the average traveler to leave his digital devices at home when traveling.'" Kolsuz, slip op. at 21 (quoting United States v. Saboonchi, 990 F. Supp. 2d 536, 556 (D. Md. 2014)). But a traveler's "expectation of privacy is less at the border," Flores-Montano, 541 U.S. at 154, and the Fourth Amendment does not guarantee the right to travel without great inconvenience, even within our borders, see Corbett v. Transp. Sec. Admin., 767 F.3d 1171, 1179 (11th Cir. 2014) (holding that airport screening "is a reasonable administrative search under the Fourth Amendment"); see also Kolsuz, slip op. at 34 (Wilkinson, J., concurring in the judgment) ("Our new world has brought inconvenience and intrusions on an indiscriminate basis, which none of us welcome, but which most of us undergo in the interest of assuring a larger common good."). Anyone who has recently taken a domestic flight likely experienced inconvenient screening procedures that require passengers to unpack electronic devices, separate and limit liquids, gels, and creams, remove their shoes, and walk through a full-body scanner. See Corbett, 767 F.3d at 1174 (explaining that a traveler must walk through a scanner or undergo a pat-down in airports). Travelers "crossing a border . . . [are] on notice that a search may be made," Alfaro-Moncada, 607 F.3d at 732 (quoting United States v. Hidalgo-Gato, 703 F.2d 1267, 1271 (11th Cir. 1983)), and they are free to leave any property they do not want searched—unlike their bodies—at home.
In contrast with the diminished privacy interests of travelers, "[t]he Government's interest in preventing the entry of unwanted persons and effects is at its zenith at the international border." Flores-Montano, 541 U.S. at 152. As we have explained, child pornography, no less than drugs or other kinds of contraband, is prohibited from "enter[ing] the country," Ramsey, 431 U.S. at 620, and the government interest in stopping contraband at the border does not depend on whether child pornography takes the form of digital files or physical photographs.
Nothing in Riley undermines this interest. In Riley, the Supreme Court explained that the rationales that support the search-incident-to-arrest exception— namely the concerns of "harm to officers and destruction of evidence"—did not "ha[ve] much force with respect to digital content on cell phones," 134 S. Ct. at 2484, because "digital data" does not pose "comparable risks," id. at 2485. But "digital" child pornography poses the same exact "risk" of unlawful entry at the border as its physical counterpart. If anything, the advent of sophisticated technological means for concealing contraband only heightens the need of the government to search property at the border unencumbered by judicial secondguessing.
Indeed, if we were to require reasonable suspicion for searches of electronic devices, we would create special protection for the property most often used to store and disseminate child pornography. With the advent of the internet, child pornography offenses overwhelmingly involve the use of electronic devices for the receipt, storage, and distribution of unlawful images. See U.S. Sent'g Comm'n, Federal Child Pornography Offenses 5, 71 (2012); see also United States v. Williams, 553 U.S. 285, 307 (2008) ("Both the State and Federal Governments have sought to suppress [child pornography] for many years, only to find it proliferating through the new medium of the Internet."). And law enforcement officers routinely investigate child-pornography offenses by forensically searching an individual's electronic devices. See U.S. Sent'g Comm'n, supra, at 67–71. We see no reason why we would permit traditional, invasive searches of all other kinds of property, see Alfaro-Moncada, 607 F.3d at 724–25, 728, 732, but create a special rule that will benefit offenders who now conceal contraband in a new kind of property.
At this point Supreme Court lawyers are shouting, "A circuit split! A circuit split!" And yes, this is a clear split on an important question. With the Supreme Court about to hand down Carpenter, this new split on computer border searches may be the next computer search and seizure issue to go up to the Supremes (although I'm still waiting for the Court to resolve the 2-2 circuit split on applying the private search doctrine to computers).
One caveat is that I'm not sure this is the case to get there. That's true for two reasons.
First, the Eleventh Circuit added an alternative holding. Even if reasonable suspicion is required, the court held, rthere was reasonable suspicion in this case. That may make cert somewhat harder, as the Supreme Court could reason that the clear split on whether some suspicion is required may make no difference to the outcome of the case if that case-specific alternative holding is correct. With that said, the Supreme Court may not care about that. They granted cert in Carpenter without a split, and I assume everyone realizes that Carpenter will lose on remedies even if he wins on the right in light of the good-faith exception. And the reasonable suspicion finding is often an issue in these cases: Because the government usually won't conduct a forensic search unless they had some kind of suspicion, the cases that make it to court will often be the ones where there was suspicion whether or not it is required. That's what happened in Cotterman, for example. After ruling that reasonable suspicion was required, the en banc Ninth Circuit ruled for the government on the ground that reasonable suspicion existed. Given that Supreme Court litigation on the Fourth Amendment is increasingly about the broader stakes rather than who wins or loses that particular case, the alternative holding may make no difference. And of course the Court could just take the broad issue, too, reviewing whether reasonable suspicion was required and if so whether it existed.
Another reason the Supreme Court might want to stay away for now is the Kolsuz uncertainty. The Eleventh Circuit recently ruled in Vergara that probable cause or a warrant isn't required for computer border searches. That let Touset focus on the narrower question of whether any suspicion is required at all. But the Fourth Circuit in Kolsuz left open whether the standard of suspicion should be reasonable suspicion or probable cause. The Supreme Court may want more circuits that require suspicion to weigh in post-Riley on just how much cause is required before reviewing the broader question of how the Fourth Amendment applies to border searches of computers and cell phones.
As always, stay tuned.