Law Enforcement Uses Border Search Exception as Fourth Amendment Loophole

In recent months, U.S. Customs and Border Protection agents have sought access to private data on the cell phones of two journalists. Such incidents are offensive because they threaten the independence of the press and pose specific risks to confidential sources. This government overreach also highlights how weak legal protections at the border for digital devices threatens the privacy of all travelers to and from the U.S., including Americans.   

In October 2016, CBP airport agents denied Canadian photojournalist Ed Ou entry into the country, after detaining him for over six hours and seizing his three cell phones. According to Mr. Ou’s ACLU attorney, “When the officers returned the phones to him several hours later, it was evident that their SIM cards had been temporarily removed because tamper tape covering the cards had been destroyed or altered.” Similarly, in July, CBP airport agents detained U.S. citizen and Wall Street Journal reporter Maria Abi-Habib for an hour and a half. When they asked for her cell phones, she refused and referred them to the newspaper’s lawyers. Fortunately, the agents eventually released her without seizing or searching her devices.

Regular travelers are also at risk. We wrote an amicus brief in the case of Ali Saboonchi, a dual citizen of the U.S. and Iran whose cell phones and flash drive were seized at the U.S.-Canadian border after returning from a vacation to Niagara Falls. Mr. Saboonchi had been under investigation for violating the trade embargo with Iran and federal agents took advantage of his presence at the border to invoke the border search exception to the Fourth Amendment.

The Fourth Amendment generally requires the government to obtain a warrant from a judge, based on probable cause that evidence of a crime will be found, before seizing and searching personal property. Thus, if federal agents had wanted to confiscate and rifle through Mr. Saboonchi’s digital devices while he was at home in Maryland, they would have needed to obtain a probable cause warrant to do so.

Decades ago, as we discussed in our brief, the Supreme Court created the border search exception to the Fourth Amendment’s warrant requirement, permitting government agents to search travelers’ luggage, vehicles or persons without a warrant and almost always without any individualized suspicion of wrongdoing.

The Supreme Court made clear, however, that a warrantless and suspicionless search must be for a discrete public interest purpose. Should a search instead be for the purpose of ordinary law enforcement, the government must first secure a probable cause warrant. For example, the government may set up a warrantless and suspicionless vehicle checkpoint to find drunk drivers for the narrow purpose of roadway safety (notwithstanding the fact that drunk drivers may be arrested and prosecuted)—but the government may not set up a warrantless and suspicionless vehicle checkpoint to find illegal narcotics, which amounts to uncovering “evidence of ordinary criminal wrongdoing.”

Thus the Supreme Court created the border search exception only for the narrow purposes of enforcing the immigration and customs laws, including ensuring that duties are paid on imported goods and that harmful people (e.g., terrorists) and harmful goods such as weapons, drugs, and infested agricultural products do not enter the country.

As we discussed in our Saboonchi brief, there is serious doubt as to whether searches generally of cell phones and similar digital devices meaningfully advance the narrow purposes of the border search exception so as to justify the categorical rule that no warrant or suspicion is required, especially in light of the significant privacy interests at stake.

The seizure and search of Mr. Saboonchi’s digital devices specifically was egregious because CBP agents used the border search exception as a loophole around the general Fourth Amendment rule. CBP agents were not acting to enforce the immigration and customs laws—but instead used Mr. Saboonchi’s presence at the U.S.-Canadian border as an excuse to conduct a warrantless search for the purpose of advancing a preexisting law enforcement investigation. Similarly, CBP agents seemed to use the journalists’ presence at international airports as an excuse to gather intelligence. CBP agents interrogated Mr. Ou about the “extremists” he had come into contact with as a journalist. And as Ms. Abi-Habib recounted, the CBP agent who asked for her cell phones stated, “We want to collect information,” presumably related to her foreign reporting.

Warrantless and suspicionless searches of digital devices at the border (or the functional equivalent of the border, such as international airports and other ports of entry) are particularly invasive given the vast amounts of personal information they can store or connect to in the “cloud”—beyond what any piece of traditional luggage can hold.

Courts have recognized the significant privacy interests in today’s digital devices, placing the law related to the border search exception in flux.

The U.S. Court of Appeals for the Ninth Circuit in U.S. v. Cotterman (2013) held that border agents needed to have reasonable suspicion—somewhere between no suspicion and probable cause—before they could conduct a “forensic” search, aided by sophisticated software, of the defendant’s laptop. Unfortunately, the court held that a manual search of a digital device is “routine” and so the standard border search rule applies (i.e., no warrant or suspicion is needed)—even though the privacy interests in any given device do not change.

The Supreme Court held in Riley v. California (2014) that the police may not invoke another exception to the warrant requirement, the search-incident-to-arrest exception, to search a cell phone possessed by an arrestee—instead, the government needs a probable cause warrant. The Court stated, “Our holding, of course, is not that the information on a cell phone is immune from search; it is instead that a warrant is generally required before such a search, even when a cell phone is seized incident to arrest.” The Riley Court focused on the vast amount of personal information stored on or accessible via modern devices: “The United States asserts that a search of all data stored on a cell phone is ‘materially indistinguishable’ from searches of these sorts of physical items. That is like saying a ride on horseback is materially indistinguishable from a flight to the moon… Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse.”

While Riley was not a border search case, the Court’s ruling was reasonably broad, thus we argued in our Saboonchi brief that the border search exception should not apply to cell phones and similar digital devices.

In light of these decisions, CBP’s 2009 policy related to searching digital devices at the border is woefully out of date and should be updated.

However, we are eager to further the law in this area—to make it clear that the Riley decision applies at the border. So we are interested in hearing about instances where CBP agents search cell phones, laptops, tablets, or similar digital devices without consent (including whether they access “cloud” content such as social media profiles), either manually or with the aid of software, either at the land borders or following international flights and cruises.

In the meantime, to protect your data when traveling consider some of our quick tech tips, our longer border search whitepaper, our more recent set of tech tips related to encountering the police during protests, and our very comprehensive guide to Surveillance Self-Defense.