Suspicionless Border Searches of Electronics Must Stop
Court Splits
Under current CBP practice, the government distinguishes between “basic” searches and “advanced” searches. “Basic” searches involve manual reviewing the device, while “advanced” searches involve connecting the device to an external equipment to review, copy, and even analyze its contents.[i]
The border search doctrine further allows the officials to conduct routine border searches without suspicions.[ii] Routine searches and seizures at the border therefore are exempted from standard Fourth Amendment requirements so that the government can prevent the contraband into the country and bar entry by those who would bring harm across the border, including communicable diseases, narcotics, or explosives.[iii] For non-routine border searches and seizures, the Court has required at least reasonable suspicion of wrongdoing to balance between private and government interests when government makes “a limited intrusion” on less than probable cause.[iv] Courts generally agree that strip searches[v], X-ray examinations of persons[vi], and body-cavity searches[vii] are non-routine, and that most searches of persons (pat down, canine sniff), personal effects (suitcases,), and vehicles are routine.[viii]
The circuit courts are split on whether a reasonable suspicion is required for either basic or advanced searches of electronics under the border search doctrine. In United States v. Touset, the Eleventh Circuit found that there is no suspicion required at all for a “forensic search” of electronic devices under the Fourth Amendment.[ix] This ruling has direct conflict with those decisions by the Ninth and Fourth Circuit. The Ninth Circuit ruled in United States v. Cotterman that “forensic searches” at the border require reasonable suspicion.[x] The Fourth Circuit interestingly refused to decide on the issue of whether more than reasonable suspicion for a “forensic search” is required in United States v. Kolsuz.[xi] The First Circuit joined the Eleventh Circuit and went a step further by holding that “neither a warrant nor probable cause is required” in its most recent decision in Alasaad v. Mayorkas.[xii] Four months later, the Court denied the petition for certiorari.
Arguments
The rationale underlying is the sovereign interest in protecting the integrity of the border by regulating the collection of duties and preventing the introduction of contraband into this country.[xiii] Following Riley v. California and Carpenter v. United States, that no longer holds true in a suspicionless search of electronic devices.[xiv]
The Court has characterized customs officials’ role as “protecting this nation from entrants who may bring anything harmful into this country, whether that be communicable diseases, narcotics, or explosives.”[xv] By definition, basic or advanced searches on cell phones and laptops do not discovery physical contrabands that criminals try to cross the border with.[xvi] Electronic contraband is borderless and can be accessed and viewed in the United States without ever having crossed a physical border. Even if there is incident when people try to transport digital contraband (such as child pornography) cross the border, it’s certainly not a “prevalent” problem as required in Riley to justify a categorical search exception.[xvii] In fact, the FBI found in its 2017 report that “those who engage in the production and distribution of child pornography . . . typically, their crimes are carried out on the so-called dark web—where they can remain anonymous—and their actions are unknown to spouses, families, and associates.”[xviii] In the case of a criminal carrying a cell phone with child pornography to cross the border, with the data backed up in the cloud and the cell phone logged out, a manual search will not find the contraband on the cell phone. All the criminalizing data can be simply downloaded and restored from the backup after the search.[xix]
On the other hand, a traveler has a fundamentally different and stronger privacy interests in the digital data saved on electronic devices. In Carpenter, the Court’s analysis of cell phone data was not limited by whether such search happened at the border or not.[xx] The Court made it clear that digital data is categorically different from physical objects because it provides “an intimate window” into one’s private life, sometimes revealing one’s “familial, political, professional, religious, and sexual associations.”[xxi] For example, a recent study on mobile AIDS platform found that one-fifth of users reported that their AIDS and HIV information have been leaked to unwanted parties.[xxii] In addition, the Court suggested that such calculation must take into account the “more sophisticated systems that are already in use or in development.”[xxiii] The next generation cell phones and network standard are likely to bring higher speeds and lower latency that will “make new experiences possible in augmented and virtual reality, connected cars and the smart home — any realm where machines need to talk to each other constantly and without lag.”[xxiv] Simply put, there will be more intimate and private data on more powerful and faster infrastructure and devices. The scale is more tilted against the government interest here in suspicionless border searches of electronics. The border search exception must be switched off.
An alternative way to argue for a higher standard for a basic search is to argue that such search is a non-routine search and thus subject to the same standard as forensic searches. Even though the Court has yet to define what exact requirements are for non-routine searches, lower courts have found the intrusiveness of the search is a deciding factor. When considering the intrusiveness of a search, courts look at the overall manner in which the search is conducted.[xxv]
The Court agrees that the intrusiveness of a search matters. In Florida v. Riley, the Court ruled that the defendant could not reasonably have expected the contents of his greenhouse not to be examined by an officer seated in a helicopter flying at 400 feet where such flight at that altitude was not abnormal.[xxvi] The Court emphasized that “there was no undue noise, and no wind, dust, or threat of injury” and concluded that only under these circumstances, “there was no violation of the Fourth Amendment.”[xxvii] In Safford Unified Sch. Dist. No. 1 v. Redding, the Court found that strip searching a 13-year-old girl to uncover prescription drugs was unreasonable because “the content of the suspicion failed to match the degree of intrusion.”[xxviii] The “indignity” of the search was “excessively intrusive in light of the age and sex of the student and the nature of the infraction.”[xxix]
Regarding the search experience at the border, the traveler complaints of electronic searches at the border obtained from the U.S. government by Knight First Amendment Institute at Columbia University have revealed some chilling experiences that could never be captured by any statistics.[xxx] One traveler’s complaint described a basic search of his devices by the border agent that included “[intermit] photos” with his wife and that the officer “were laughing and smirking the whole time.”[xxxi] In another complaint filed by a U.S. citizen, the father described that his children grew up in America and love America. After the officials detained their family and searched their electronics at the border, his kids started to question him, and they are “starting to lose faith in the American system.”[xxxii] Another complaint from a U.S. citizen whose family’s devices were searched says “my family and I feel belittled, ashamed, humiliated and disgraced when all of this happens.”[xxxiii] When a person’s electronic devices are getting more functional, accessible, and user-friendly, and revealing wider and deeper personal privacy, such as one’s “familial, political, professional, religious, and sexual associations,” it is inevitable that we are to see people experience “a range of discriminatory, demeaning, and gratuitously intrusive searches” that have taken place at the border.[xxxiv]
The intrusiveness of a basic search is only compounded by the its severe violation of a person’s privacy interest that is unmatched by searches of physical objects. There is nothing conventional about the basic search conducted on one’s cell phone in terms of its privacy reach–the officer can look at your intimate pictures, videos, emails and messaging histories, not to mention those apps that could reveal your location information, health condition, political and religious view, and so on. A manual search on electronics should be a non-routine search; therefore, the same heightened standard should apply to both the basic and advanced search of electronics at the border.
Conclusion
Following the path to switch off Fourth Amendment search exceptions demonstrated in Riley and Carpenter, courts should find the border search exception no longer applies to the data that stored on the devices. The underlying rationale cannot hold up because the violation of person’s privacy interest has become much more intrusive in the digital age and a basic search at the border can no longer be considered as a routine search.
[i] CBP Directive No. 3340-049A at 4–5, (Jan. 4, 2018), https://www.dhs.gov/xlibrary/assets/cbp_directive_3340-049.pdf.
[ii] United States v. Montoya de Hernandez, 473 U.S. 531, 538 (1985). See Flores-Montano, 541 U.S. at 154–55 (border search including removal and inspecting of fuel tank did not require probable cause or reasonable articulable suspicion); United States v. Charleus, 871 F.2d 265, 267 (2d Cir. 1989) (no reasonable suspicion required for routine border search of personal belongings and effects); see also Montoya de Hernandez, 473 U.S. at 538; United States v. Martinez-Fuerte, 428 U.S. 543, 562–563(1976) (travelers in automobiles could be stopped at border checkpoints without individualized suspicion); United States v. Villamonte-Marquez, 462 U.S. 579, 588 (1983) (officials could board and search boats on inland waters with ready access to the sea with no suspicion); see also Bradley v. United States., 299 F.3d 197, 202 (3d Cir. 2002); United States v. Portillo-Aguirre, 311 F.3d 647, 652 (5th Cir. 2002); United States v. Vargas-Castillo, 329 F.3d 715, 722 (9th Cir. 2003).
[iii] 473 U.S. at 537.
[iv] Montoya De Hernandez, 473 U.S. at 541 (holding that “detention of a traveler at the border, beyond the scope of a routine customs search and inspection, is justified at its inception if customs agents . . . reasonably suspect that the traveler is smuggling contraband in her alimentary canal.” See, U.S. v. Brignoni-Ponce, 422 U.S. 873, 881 (1975) (reasonable suspicion required for roving border patrol to stop vehicle and search for illegal aliens); see also, U.S. v. Charleus, 871 F.2d 265, 267–68 (2d Cir. 1989); U.S. v. Gandara-Salinas, 327 F.3d 1127, 1131 (10th Cir. 2003); Brent v. Ashley, 247 F.3d 1294, 1300 (11th Cir. 2001); U.S. v. Outlaw, 319 F.3d 701, 703 (5th Cir. 2003); U.S. v. Oyekan, 786 F.2d 832, 836-37 (8th Cir. 1986).
[v] United States. v. Kelly, 302 F.3d 291, 294 (5th Cir. 2002); Bradley v. United States, 299 F.3d 197, 203 (3d Cir. 2002); Kaniff v. United States, 351 F.3d 780, 788 (7th Cir. 2003).
[vi] United States v. Mejia, 720 F.2d 1378, 1381-82 (5th Cir.1983); Brent v. Ashley, 247 F.3d 1294, 1303 (11th Cir. 2001); United States v. Adekunle, 2 F.3d 559, 562 (5th Cir. 1993)
[vii] United States v. Handy, 788 F.2d 1419, 1420–21 (9th Cir. 1986); U.S. v. Pino, 729 F.2d 1357, 1359; United States v. Saboonchi, 990 F. Supp. 2d 536, 549 (D. Md. 2014).
[viii] See Bradley v. U.S., 299 F.3d 197, 203 (3d Cir. 2002); United States v. Kelly, 302 F.3d 291, 294 (5th Cir. 2002); United States v. Johnson, 991 F.2d 1287, 1291–92 (7th Cir. 1993); Flores-Montano, 541 U.S. at 154–55; Almeida-Sanchez v. U.S., 413 U.S. 266, 272 (1973).
[ix] 890 F.3d 1227, 1235–36 (11th Cir. 2018).
[x] 709 F.3d 952, 968 (9th Cir. 2013) (en banc).
[xi] 890 F.3d 133, 148 (4th Cir. 2018).
[xii] 988 F.3d 8 (1st Cir. 2021)
[xiii] United States v. Montoya de Hernandez, 473 U.S. at 537; United States v. Ramsey, 431 U.S. at 620.
[xiv] 134 S.Ct. 2473 (2014); 138 S. Ct. 2206 (2018).
[xv] Id at 544.
[xvi] 2018 CBP Policy, supra at 5.1.
[xvii] Riley v. California, 134 S.Ct. at 2486.
[xviii] Federal Bureau of Investigation, The Scourge of Child Pornography, FBI (Apr. 25, 2017), https://www.fbi.gov/news/stories/the-scourge-of-child-pornography.
[xix] Brian X. Chen, Crossing the Border? Here’s How to Safeguard Your Data From Searches, NYT (Mar. 21, 2017), https://www.nytimes.com/2017/03/21/technology/personaltech/crossing-the-border-heres-how-to-safeguard-your-data-from-searches.html.
[xx] Carpenter v. United States, 138 S.Ct at 2217.
[xxi] Id.
[xxii] Hibah Hussain, Cellphone Projects in Developing World Need Better Privacy, Security Measures, Slate (Mar. 14, 2019), http://www.slate.com/blogs/future_tense/2013/08/27/cellphone_privacy_and_security_in_the_developing_world_need_to_be_discussed.html.
[xxiii] Carpenter v. United States, 138 S.Ct at 2218–19.
[xxiv] Catlin McGarry, What is 5G? The definitive guide to the 5G network rollout, Tom’s Guide (Mar. 7, 2020), https://www.tomsguide.com/us/5g-release-date,review-5063.html.
[xxv] Id; See also United States v. Kelly, 302 F.3d 291, 294 (5th Cir. 2002) (finding that the invasion of the privacy and dignity of the individual distinguish routine and nonroutine searches).
[xxvi] Florida v. Riley, 488 U.S. 445, 451 (1989).
[xxvii] Id.
[xxviii] Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 375(2009).
[xxix] Id at 376.
[xxx] Department of Homeland Security FOIA Branch, FOIA NO. 2017-IGFO-00085, July 14, 2017, https://assets.documentcloud.org/documents/4334752/KFAI-FOIA-TRIP-Complaints-Border-Electronics.pdf.
[xxxi] Id at Complaint dated Jan. 15, 2016 at 5:34 PM.
[xxxii] Id at Complaint dated Feb. 1, 2012 at 12:00 AM.
[xxxiii] Id at Complaint dated June 11, 2015 at 3:19 PM.
[xxxiv] Carrie Decell, Warrantless Border Searches: The Officer “Searched Through...Intimate Photos of My Wife”, KFI (Dec. 22, 2017), https://knightcolumbia.org/news/warrantless-border-searches-officer-searched-throughintimate-photos-my-wife.