PRIVACYEFF Tells the Second Circuit a Second Time That Electronic Device Searches at the Border Require a Warrant
The number of warrantless device searches at the border and the significant invasion of privacy they represent is only increasing. In Fiscal Year 2023, U.S. Customs and Border Protection (CBP) conducted 41,767 device searches.
EFF, along with ACLU and the New York Civil Liberties Union, filed a second amicus brief in the U.S. Court of Appeals for the Second Circuit urging the court to require a warrant for border searches of electronic devices, an argument EFF has been making in the courts and Congress for nearly a decade.
The case, U.S. v. Smith, involved a traveler who was stopped at Newark airport after returning from a trip to Jamaica. He was detained by border officers at the behest of the FBI and his cell phone was forensically searched. He had been under investigation for his involvement in a conspiracy to control the New York area emergency mitigation services (“EMS”) industry, which included (among other things) insurance fraud and extortion. He was subsequently prosecuted and sought to have the evidence from his cell phone thrown out of court.
As we wrote about last year, the district court made history in holding that border searches of cell phones require a warrant and therefore warrantless device searches at the border violate the Fourth Amendment. However, the judge allowed the evidence to be used in Mr. Smith’s prosecution because, the judge concluded, the officers had a “good faith” belief that they were legally permitted to search his phone without a warrant.
The number of warrantless device searches at the border and the significant invasion of privacy they represent is only increasing. In Fiscal Year 2023, U.S. Customs and Border Protection (CBP) conducted 41,767 device searches.
The Supreme Court has recognized for a century a border search exception to the Fourth Amendment’s warrant requirement, allowing not only warrantless but also often suspicionless “routine” searches of luggage, vehicles, and other items crossing the border.
The primary justification for the border search exception has been to find—in the items being searched—goods smuggled to avoid paying duties (i.e., taxes) and contraband such as drugs, weapons, and other prohibited items, thereby blocking their entry into the country.
In our brief, we argue that the U.S. Supreme Court’s balancing test in Riley v. California (2014) should govern the analysis here—and that the district court was correct in applying Riley. In that case, the Supreme Court weighed the government’s interests in warrantless and suspicionless access to cell phone data following an arrest against an arrestee’s privacy interests in the depth and breadth of personal information stored on a cell phone.
