https://www.eff.org/deeplinks/2023/05/federal-judge-makes-history-holding-border-searches-cell-phones-require-warrant Skip to main content * About + Contact + Press + People + Opportunities * Issues + Free Speech + Privacy + Creativity and Innovation + Transparency + International + Security * Our Work + Deeplinks Blog + Press Releases + Events + Legal Cases + Whitepapers + Podcast + Annual Reports * Take Action + Action Center + Electronic Frontier Alliance + Volunteer * Tools + Privacy Badger + HTTPS Everywhere + Surveillance Self-Defense + Certbot + Atlas of Surveillance + Cover Your Tracks + Crocodile Hunter * Donate + Donate to EFF + Giving Societies + Shop + Other Ways to Give + Membership FAQ * Donate + Donate to EFF + Shop + Other Ways to Give * Search form Search [ ] --------------------------------------------------------------------- Email updates on news, actions, and events in your area. Join EFF Lists * Copyright (CC BY) * Trademark * Privacy Policy * Thanks Electronic Frontier Foundation Donate [htfti-dave]Podcast Episode - Who Inserted the Creepy? [htfti-dave] Electronic Frontier Foundation * About + Contact + Press + People + Opportunities * Issues + Free Speech + Privacy + Creativity and Innovation + Transparency + International + Security * Our Work + Deeplinks Blog + Press Releases + Events + Legal Cases + Whitepapers + Podcast + Annual Reports * Take Action + Action Center + Electronic Frontier Alliance + Volunteer * Tools + Privacy Badger + HTTPS Everywhere + Surveillance Self-Defense + Certbot + Atlas of Surveillance + Cover Your Tracks + Crocodile Hunter * Donate + Donate to EFF + Giving Societies + Shop + Other Ways to Give + Membership FAQ * Donate + Donate to EFF + Shop + Other Ways to Give * Search form Search [ ] Federal Judge Makes History in Holding That Border Searches of Cell Phones Require a Warrant DEEPLINKS BLOG By Sophia Cope May 30, 2023 [border-sea] Federal Judge Makes History in Holding That Border Searches of Cell Phones Require a Warrant Share It Share on Twitter Share on Facebook Copy link [border-search-1_1] * Espanol With United States v. Smith (S.D.N.Y. May 11, 2023), a district court judge in New York made history by being the first court to rule that a warrant is required for a cell phone search at the border, "absent exigent circumstances" (although other district courts have wanted to do so). EFF is thrilled about this decision, given that we have been advocating for a warrant for border searches of electronic devices in the courts and Congress for nearly a decade. If the case is appealed to the Second Circuit, we urge the appellate court to affirm this landmark decision. The Border Search Exception as Applied to Physical Items Has a Long History U.S. Customs & Border Protection (CBP) asserts broad authority to conduct warrantless, and often suspicionless, device searches at the border, which includes ports of entry at the land borders, international airports, and seaports. For a century, the Supreme Court has recognized a border search exception to the Fourth Amendment's warrant requirement, allowing not only warrantless but also often suspicionless searches of luggage and other items crossing the border. The number of warrantless device searches at the border and the significant invasion of privacy they represent is only increasing. In Fiscal Year 2022, CBP conducted an all-time high of 45,499 device searches. The Supreme Court has not yet considered the application of the border search exception to smartphones, laptops, and other electronic devices that contain the equivalent of millions of pages of information detailing the most intimate details of our lives--even though we asked them to back in 2021. Circuit Courts Have Narrowed the Border Search Exception's Application to Digital Data Federal appellate courts, however, have considered this question and circumscribed CBP's authority. The Ninth Circuit in United States v. Cano (2019) held that a warrant is required for a device search at the border that seeks data other than "digital contraband" such as child pornography. Similarly, the Fourth Circuit in United States v. Aigbekaen (2019) held that a warrant is required for a forensic device search at the border in support of a domestic criminal investigation. These courts and the Smith court were informed by Riley v. California (2014). In that watershed case, the Supreme Court held that the police must get a warrant to search an arrestee's cell phone. The Smith Court Rightly Applied the Riley Balancing Test In our advocacy, we have consistently argued that Riley's analytical framework should inform whether the border search exception applies to cell phones and other electronic devices. This is precisely what the Smith court did: "In holding that warrants are required for cell phone searches at the border, the Court believes it is applying in straightforward fashion the logic and analysis of Riley to the border context." In Riley, the Supreme Court applied a balancing test, weighing 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 modern cell phones. In analyzing the government's interests, the Riley Court considered the traditional reasons for authorizing warrantless searches of an arrestee's person: to protect officers from an arrestee who might use a weapon against them, and to prevent the destruction of evidence. The Riley Court found only a weak nexus between digital data and these traditional reasons for warrantless searches of arrestees. The Court reasoned that "data on the phone can endanger no one," and the probability is small that associates of the arrestee will remotely delete digital data. The Riley Court also detailed how modern cell phones can in fact reveal the "sum of an individual's private life," and thus individuals have significant and unprecedented privacy interests in their cell phone data. On balance, the Riley Court held that the traditional search-incident-to-arrest exception to the warrant requirement does not apply to cell phones. The Smith court properly applied the Riley balancing test in the border context, noting that travelers' privacy interests in their digital data are also significant: Just as in Riley, the cell phone likely contains huge quantities of highly sensitive information--including copies of that person's past communications, records of their physical movements, potential transaction histories, Internet browsing histories, medical details, and more ... No traveler would reasonably expect to forfeit privacy interests in all this simply by carrying a cell phone when returning home from an international trip. In analyzing the government's interests in gaining warrantless access to cell phone data at the border, the Smith court considered the traditional justifications for the border search exception: in the words of the judge, "preventing unwanted persons or items from entering the country." In particular, the government has a strong interest in conducting warrantless searches of luggage and other containers to identify goods subject to customs duty (import tax) and items considered contraband or that would otherwise be harmful if brought into the country such as drugs or weapons. Considering these traditional rationales for the border search exception in the context of modern cell phones, the Smith court concluded that the government's "interest in searching the digital data 'contained' on a particular physical device located at the border is relatively weak." The court focused on the internet and cloud storage, stating: " Stopping the cell phone from entering the country would not ... mean stopping the data contained on it from entering the country" because any data that can be found on a cell phone--even digital contraband--"very likely does exist not just on the phone device itself, but also on faraway computer servers potentially located within the country." This is different from physical items that if searched without a warrant may be efficiently interdicted, and thereby actually prevented from entering the country. The Smith court further explained: To be sure, that data may contain information relevant to the Government's determination as to whether a person should be allowed entry, but the Government has little heightened interest in blocking entry of the information itself, which is the historical basis for the border search exception. Thus, the Smith court concluded: Because the government's interests in a warrantless search of a cell phone's data are thus much weaker than its interests in warrantless searches of physical items, and a traveler's privacy interests in her cell phone's data are much stronger than her privacy interests in her baggage, the Court concludes that the same balancing test that yields the border search exception cannot support its extension to warrantless cell phone searches at the border. EFF's Work Is Making a Difference The Smith court's application of Riley's balancing test is nearly identical to the arguments we've made time and time again. The Smith court also cited Cano, in which the Ninth Circuit engaged extensively with EFF's amicus brief even though it didn't go as far as requiring a warrant in all cases. The Smith court acknowledged that no federal appellate court "has gone quite this far (although the Ninth Circuit has come close)." We're pleased that our arguments are moving through the federal judiciary and finally being embraced. We hope that the Second Circuit affirms this decision and that other courts--including the Supreme Court--are courageous enough to follow suit and protect personal privacy. Related Issues Border Searches Share It Share on Twitter Share on Facebook Copy link Join EFF Lists Discover more. Email updates on news, actions, events in your area, and more. Email Address [ ] Postal Code (optional) [ ] Anti-spam question: Enter the three-letter abbreviation for Electronic Frontier Foundation: [ ] Don't fill out this field (required) [ ] [Submit] Thanks, you're awesome! Please check your email for a confirmation link. Oops something is broken right now, please try again later. Related Updates [border-general] Press Release | November 29, 2022 EFF Releases Images of CBP Surveillance Technology Along the Southern Border SAN FRANCISCO--The Electronic Frontier Foundation (EFF) on Tuesday published scores of new photos of surveillance technology recently deployed along the U.S.-Mexico border, depicting a digital dragnet that threatens civil liberties and human rights."The rapid expansion of digital surveillance along the U.S.-Mexico border doesn't just affect migrants--it affects anyone living near... 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In fiscal year 2019 alone (before the pandemic curbed international travel), U.S. Customs and Border Protection (CBP) officers conducted nearly 41,000 electronic device searches without seeking a warrant... [eff-pr-og] Press Release | April 23, 2021 EFF and ACLU Ask Supreme Court to Review Case Against Warrantless Searches of International Travelers' Phones and Laptops Washington, D.C. --The Electronic Frontier Foundation (EFF), the American Civil Liberties Union, and the ACLU of Massachusetts today filed a petition for a writ of certiorari, asking the Supreme Court to hear a challenge to the Department of Homeland Security's policy and practice of warrantless and suspicionless searches of... [eff-pr-og] Press Release | January 4, 2021 Video Hearing Tuesday: ACLU, EFF Urge Court to Require Warrants for Border Searches of Digital Devices Boston - The American Civil Liberties Union (ACLU), the Electronic Frontier Foundation (EFF), and the ACLU of Massachusetts will urge an appeals court on Tuesday to require warrants for the government to search electronic devices at U.S. airports and other ports of entry--ensuring that the Fourth Amendment protects travelers as... [border-search-1] Deeplinks Blog by Saira Hussain, Adam Schwartz, Sophia Cope | August 18, 2020 Civil Rights and First Amendment Defenders Urge First Circuit to Require a Warrant for Border Device Searches Last month, EFF, along with co-counsel ACLU and ACLU of Massachusetts, filed a brief in Alasaad v. Wolf urging the U.S. Court of Appeals for the First Circuit to require a warrant for searches of electronic devices at the border. In fiscal year 2019, border officers searched ... [border-general-2] Deeplinks Blog by Matthew Guariglia | May 21, 2020 EFF to UN Expert on Racial Discrimination: Mass Border Surveillance Hurts Vulnerable Communities EFF submitted a letter to the United Nations' Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance to testify to the negative impacts of mass surveillance on vulnerable communities at the U.S. border. The Special Rapporteur called for submissions on "Race, Borders, and... [border-search-1] Deeplinks Blog by Sophia Cope | February 19, 2020 EFF to Ninth Circuit: Border Searches of Electronic Devices Require a Warrant Although the Ninth Circuit issued a strong opinion last year in favor of digital privacy rights at the border, EFF filed an amicus brief [PDF] in a new case urging the court to go a step further. The Ninth Circuit should finally hold that the Fourth Amendment requires... Discover more. Email updates on news, actions, events in your area, and more. Email Address [ ] Postal Code (optional) [ ] Anti-spam question: Enter the three-letter abbreviation for Electronic Frontier Foundation: [ ] Don't fill out this field (required) [ ] [Submit] Thanks, you're awesome! Please check your email for a confirmation link. Oops something is broken right now, please try again later. Share It Share on Twitter Share on Facebook Copy link Related Issues Border Searches Back to top EFF Home Follow EFF: * twitter * facebook * instagram * youtube * flicker * rss * linkedin Check out our 4-star rating on Charity Navigator. 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