Last summer, the Supreme Court declined[1] to hear three cases involving the constitutional standards for U.S. border searches of traveler’s electronic devices. In response, Sen. Ron Wyden (D-OR) and Sen. Rand Paul (R-KY) sponsored bi-partisan legislation[2] seeking to limit the federal government’s power to conduct searches of phones, computers, and other devices when people cross the border into the United States. The federal circuits are split on whether reasonable suspicion is necessary for what it deems “non-routine” or particularly invasive searches. The Second Circuit in particular, which includes large international airports, has not definitely ruled on the issue. In this post, I sketch the parameters of a traveler’s right to privacy at the border and how courts interpret the exceptions under federal law.
The 4th Amendment and The Border Search Exception
The Fourth Amendment of the Constitution prohibits all unreasonable searches of a person or their effects.[3] A search occurs when the government violates a reasonable “expectation of privacy” or “obtains information by physically intruding on a constitutionally protected area.”[4] Typically, a warrant is required to override this right, but, "[i]n the absence of a warrant, a search is reasonable only if it falls within a specific exception to the warrant requirement."[5] Border searches are widely held to be within the government’s most expansive authority because of their "inherent authority to protect, and a paramount interest in protecting, [their] territorial integrity.”[6] As such, courts allow border patrol agencies such as Transportation Security Administration (TSA) or Immigration and Customs Enforcement(ICE) broad latitude to conduct physical searches of travelers and their effects.
Typically, the standard applied to border searches depends on whether the search is deemed to be routine or not. Courts consider all common and routine searches of a traveler to be de facto reasonable, while searches outside the scope of routine require a “reasonable suspicion.”[7] Whether a search is routine or nonroutine turns on the degree of invasiveness and the privacy expectation of the traveler. Routine searches include searches of outer clothing, luggage, a purse, wallet, pockets, or shoes which all “do not substantially infringe on a traveler's privacy rights.”[8]
On the other hand, the Supreme Court does expect agents to meet a “reasonable suspicion” standard whenever a search is deemed nonroutine. Examples of nonroutine searches typically include searches of the body. In United States v. Montoya de Hernandez, the Court held that a strip search revealing nearly 100 balloons of cocaine in de Hernandez’s alimentary canal did go beyond a “routine” search and thus required “reasonable suspicion.”[9] In Navarette v. California, the Second Circuit ruled that the heightened standard of reasonable suspicion requires only "a particularized and objective basis for suspecting the particular person stopped of criminal activity."[10] As such, courts allow agents broad latitude to justify reasonable suspicion, even when the suspected material is not the primary duty of the officer. For instance, in United States v. Levy, a traveler stopped by border patrol had his notebook photocopied by agents who were tipped off that he was under investigation for stock market manipulation.[11]
Electronic Devices
In 2014, the Supreme Court recognized in Riley v California that electronic devices are substantially different from other types of property, since they “place vast quantities of personal information literally in the hands of individuals [and expose] the sum of an individual’s private life.”[12] As such, some argue that agencies should be held to a higher standard when searching a person’s email or photos held on their phone or laptop than they would be when searching a suitcase or notebook.
Neither the Second Circuit nor the Supreme Court have definitively ruled on the standard that should apply to nonroutine border searches of electronic devices. However, all admit that devices do generally fit within the border search exemption, and routine searches of electronic devices do not require “reasonable suspicion”.[13] They apply the distinction between non-routine and routine from property and person to electronics, ruling that a routine search “entails only a cursory search that an officer may perform manually. It involves opening the computer and viewing the computer's contents as any lay person might be capable of doing simply by clicking through various folders.”[14]
The complexity occurs when dealing with more invasive or nonroutine searches that look for metadata or strip the device of its contents. A nonroutine search typically entails “a forensic search [which] involves an exhaustive search of a computer's entire hard drive… [F]orensic [search] software often must run for several hours to examine copies of the laptop hard drive.”[15]
There is currently a split among the circuits over whether nonroutine searches of electronic devices require reasonable suspicion. The First, Fourth, and Ninth Circuit all agree that “officers may [only] conduct a warrantless forensic search of a cell phone under the border search exception where the officers possess sufficient individualized suspicion”.[16] For example, in Cano, officers arrested someone for carrying drugs across the U.S. border and then forensically searched their devices. The Ninth Circuit there ruled that "to conduct a more intrusive, forensic cellphone search border officials must reasonably suspect that the cellphone to be searched itself contains contraband."[17]
On the other hand, in Touset, the Eleventh Circuit held that agents are allowed to conduct a nonroutine forensic search without suspicion because phones are adjacent to property, not a person’s body or other instances of nonroutine searches.[18] Border officials, acting on prior intelligence, seized Touset’s laptops when he crossed the border and found child pornography. Despite the reasonable suspicion of the officials in the present case, the court made a point of ruling that "[t]he Supreme Court has never required reasonable suspicion for a search of property at the border, however nonroutine and intrusive.” Despite the arguments in opposition, "it [did] not make sense to say that electronic devices should receive special treatment," taking into account how media is transferred nowadays.[19]
District Courts in the Second Circuit have avoided issuing a bright line rule as to whether a search is nonroutine and requires suspicion through three mechanisms. First, that the standard of reasonable suspicion is easily met in almost every case that comes before the court.[20] Second, due to cost and effort, agents rarely perform a forensic search without first finding suspicious material during the routine search. This is all buttressed by the latest CBP guidelines which seek to avoid overly intrusive searches. Third, courts are more willing to define the search as routine if it occurs at the border. In Dattmore, the Court found that a search using specialized equipment during the initial inspection was considered routine despite the use of complex technology. They noted that “[t]here is nothing in the record to suggest that this was anything other than a routine border inquiry” because it occurred during an initial inspection of the traveler.[21]
Despite the fundamental issues brought up in this debate, there is no consensus currently as to the constitutionality of these types of searches. As such, depending on where a traveler enters the United States may determine how they are treated under the law. Given the easy travel between states, it makes little sense to restrict officers from searching some travelers but not others. After all, the national security concern that enables the border exemption should apply uniformly to all because it affects everyone equally. There is certainly room for Congress to provide guidance on this issue.
[1]https://www.reuters.com/legal/government/us-supreme-court-turns-away-digital-device-border-search-cases-2021-06-28/
[2]https://www.wyden.senate.gov/news/press-releases/wyden-paul-bill-requires-warrants-to-search-americans-digital-devices-at-the-border-2021
[3] U.S. Const. Amend. IV
[4] Carpenter v. United States, 138 S. Ct. 2206 (2018)
[5] Riley v. California, 573 U.S. 373 (2014)
[6] United States v. Flores-Montano, 541 U.S. 149 (2004)
[7] Tabbaa v. Chertoff, 509 F.3d 89 (2d Cir. 2007) ("It is well established that the government has broad powers to conduct searches at the border even where . . . there is no reasonable suspicion that the prospective entrant has committed a crime.")
[8] Ibid.
[9] United States v. Montoya De Hernandez, 473 U.S. 531 (1985)
[10] Navarette v. California, 572 U.S. 393 (2014); United States v. Irving, 452 F.3d 110, 123 (2d Cir. 2006)
[11] United States v. Levy, 803 F.3d 120 (2d Cir. 2015)
[12] Ibid.
[13] See United States v. Young, 2013 U.S. Dist. LEXIS 33496 (Jan. 16, 2013 W.D.N.Y.); Courts in other circuits recognize that “electronic device searches do not fit neatly into other categories of property searches” and question what, if any, types of electronic searches might fall into the nonroutine category. Alasaad v. Mayorkas, 988 F.3d 8 (1st Cir. 2021)
[14] Ibid.
[15] United States v. Cotterman, 709 F.3d 952 (9th Cir. 2013); See also United States v. Levy
[16] States v. Aigbekaen, 943 F.3d 713 (4th Cir. 2019
[17] United States v. Cano, 934 F.3d 1002 (9th Cir. 2019).
[18] United States v. Touset, 890 F.3d 1227 (11th Cir. 2018).
[19] Ibid.
[20] Abidor v. Napolitano, 990 F. Supp. 2d 260 (E.D.N.Y. 2013) (“Reasonable suspicion is a relatively low standard”)
[21] United States v. Dattmore, 2013 U.S. Dist. LEXIS 126342 (W.D.N.Y. Aug. 13, 2013)