For the last decade or so, lower courts have been grappling with how the Fourth Amendment applies to searches of digital devices such as cell phones at the international border. Physical property can be searched when it crosses the border to advance sovereign interests in preventing the important of contraband, enforcing immigration laws, and making sure tariffs are paid. But do these rationales still apply to allow the search of a cell phone? When you travel internationally, should the U.S. government be allowed to search your cell phone without limit? Or should a warrant be required, or at least sufficient legal suspicion?
My own view is that these government interests aren't advanced by digital searches, and that a warrant should be needed to search a cell phone at the border, at least in the context of devices held by U.S. citizens. As I explained my book, The Digital Fourth Amendment, I see this as just like Riley v. California, the case holding that the search-incident-to-arrest exception does not apply to cell phones. As in Riley, the physical world government interests that justify the rule for physical property just don't carry over to the digital setting. Extending the rule to cell phones has to "rest on its own bottom," Riley tells us, and I don't think it can.
Think about it. You can't hide a person in a phone, and the data inside a cell phone isn't subject to tariffs. And while there is an interest in preventing contraband from being brought into the country in the form of digital CSAM (child sexual abuse materials), border searches of digital devices aren't actually conducted for that reason. The government searches phones when people cross the border for ordinary criminal enforcement reasons. It's trying to catch bad people, not prevent the importation of contraband. The government is searching at the border only because carrying cell phones paired with traditional border search powers gives them a windfall that helps them catch criminals. I don't think the Fourth Amendment allows them that windfall, given that these searches are categorically undertaken for ordinary criminal law enforcement, not the special sovereignty concerns justifying the border search exception. So I think a warrant is needed, at least for searches of citizens' devices. If you want the details of my argument, you can read the chapter of the book on this posted at SSRN.
Yesterday, the Second Circuit disagreed, however. In United States v. Alisigwe, the Second Circuit ruled (per Judge Menashi) that no warrant and not even any suspicion is needed to search a cell phone at the border. The case involves Chinwendu Alisigwe, a lawful permanent resident who was suspected of engagement in fraud schemes. Returning to the United States from international flights, Alisigwe was stopped at JFK by border officials who asked him to unlock his phone. He did so. Border officials looking for fraud records skimmed through his phone and saw evidence of Alisigwe's fraud crimes.
According to the Second Circuit, this was categorically allowed:
The "longstanding recognition that searches at our borders without probable cause and without a warrant are nonetheless 'reasonable' has a history as old as the Fourth Amendment itself." United States v. Ramsey, 431 U.S. 606, 619 (1977). "The border-search exception is grounded in the recognized right of the sovereign to control, subject to substantive limitations imposed by the Constitution, who and what may enter the country." Id. at 620. Because "[t]he Government's interest in preventing the entry of unwanted persons and effects is at its zenith at the international border," United States v. Flores-Montano, 541 U.S. 149, 152 (2004), "searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border," Ramsey, 431 U.S. at 616.
Under our precedents, no suspicion is required before the government searches a traveler's property at the border. See United States v. Irving, 452 F.3d 110, 123 (2d Cir. 2006). Searches of property "are made reasonable by that person's decision to enter this country." Id. To be sure, nonroutine searches, which are "more invasive searches, like strip searches, require reasonable suspicion." Id. But we have held that "the label 'non-routine' should generally be reserved for intrusive border searches of the person (such as body-cavity searches or strip searches), not belongings." United States v. Levy, 803 F.3d 120, 123 n.3 (2d Cir. 2015) (emphasis added). Because a cellphone is property, our precedents establish that the government does not need to have reasonable suspicion before searching a traveler's cellphone at the border.
