The Fourth Circuit Says Border Agents Can Search Your Phone By Hand, No Suspicion Required

The Fourth Circuit Says Border Agents Can Search Your Phone By Hand, No Suspicion Required

Legal internSuzanne Castillo was the principal author of this post.

The Fourth Circuit issued a disappointing opinion inU.S. v. Belmonte Cardozo, a case in which EFF filed anamicus brief, alongside the national ACLU, its Maryland, North Carolina, South Carolina, and Virginia affiliates, and the National Association of Criminal Defense Lawyers (NACDL).

We argued that electronic device searches at the border should require a warrant based on probable cause, but at minimum, regardless of whether an officer searches by hand or with forensic software that plugs into a device and downloads its entire contents for search, the same Fourth Amendment standard should apply to all device searches at the border.

Unfortunately, the court rejected that argument and ruled that a lower standard applies to manual searches, allowing the government to conduct extraordinarily invasive electronic device searches without any suspicion of wrongdoing, simply because the border officer chooses to search by hand rather than with a forensic tool.

TheFourth Amendmentrequires that government searches of persons or property be reasonable, which usually means obtaining a warrant based on probable cause from a judge.

But a warrantless search can still be reasonable if it falls within an exception to the warrant requirement, including the exception that allows officers to search your belongings at the border. The border search exception allows warrantless searches of persons or property crossing the U.S. border, including the functional equivalent of the border such as international airports, given the government’s interests in controllingwho and what may enter the country.

Historically, courts have categorized border searches of luggage, vehicles, and personal effects as “routine” and thus reasonable even if conducted without any suspicion that the traveler has engaged in wrongdoing; courts have also held that more invasive “nonroutine” searches, such as certainbody searchesand searches thatdamage property, require reasonable suspicion.

But a person’s privacy interests in the personal data on a phone or laptop are extraordinarily different than their limited privacy interests in the contents of their suitcase.

The Supreme Court addressed cell phone privacy inRiley v. California(2014), holding that the search-incident-to-arrest exception to the warrant requirement did not apply to cell phones, thereby generally requiring a warrant for phone searches, at least at the interior of the country. The court recognized the unprecedented privacy interests people have in their cell phones and how even brief manual searches can reveal the “sum of an individual’s private life,” including our political affiliations, religious beliefs, sexuality, and more. Accordingly, the Supreme Court held that because electronic device searches bear “little resemblance” to searches of bags or physical containers, they should be evaluated differently.

FollowingRiley, the Fourth Circuit considered two border device search cases involving forensic searches, in which border officers used external software to extract and analyze a device’s data.

InU.S. v. Kolsuz(2018), the Fourth Circuit held that a forensic search of a cell phone at the border “must be considered a nonroutine border search, requiring some measure of individualized suspicion” of a transnational offense, but the court declined to decide whether the standard is only reasonable suspicion or instead a probable cause warrant.

Then inU.S. v. Aigbekaen(2019), the Fourth Circuit held that a forensic device search at the border in support of a purely domestic law enforcement investigation requires a warrant. The court also reiterated the generalKolsuzrule for a forensic border-related device search: the “Government must have individualized suspicion of an offense that bears some nexus to the border search exception's purposes of protecting national security, collecting duties, blocking the entry of unwanted persons, or disrupting efforts to export or import contraband.”

InBelmonte Cardozo, manual searches were finally before the court.

Jose Belmonte Cardozo was already on the U.S. government’s radar when he traveled from Bolivia to the U.S. and was met by a U.S. Customs and Border Protection (CBP) officer at Washington Dulles International Airport. The officer manually searched his cell phone and found child sexual abuse material (CSAM), considered “digital contraband,” leading to Belmonte Cardozo’s arrest and criminal prosecution.

At issue on appeal was what standard should apply to manual device searches at the border. The Fourth Circuit held that, unlike forensic searches, manual searches are “routine” and thus reasonable under the Fourth Amendment without a warrant or individualized suspicion.

The court’s holding hinged on four differences between manual and forensic searches: (1) in a manual search, a person does the searching, not a machine; (2) a manual search’s breadth depends on the officer’s time and energy, while forensic searches are comprehensive; (3) manual searches reveal only what a user can typically access, while forensic searches can uncover deleted files, cached fragments, metadata, and more; and (4) manual searches are subject to an officer’s fading memory or imperfect notes, while forensic searches create a permanent copy.

But in identifying these technical differences, the court never explainswhythey justify a lower standard for manual searches.

The Fourth Circuit’s holding is problematic because, as we argued in our amicus brief, manual searches reach thesamecategories of data as forensic searches—data that can reveal highly personal aspects of our identities and our lives. It does not matter if a search is conducted by an agent’s thumbs or by software: the end result is equally as invasive, therefore all device searches should fall under the warrant requirement, or at least the same Fourth Amendment standard.

The court repeatedly emphasized that the search here lasted only two minutes, suggesting that the time-limited search was not privacy-invasive. But an individual’s privacy interests in their personal data don’t change based onhowtheir phone is searched orhow long. Scrolling for two minutes through someone’s personal text messages or photos is an invasion of privacy that may reveal intimate details about the person even in that short period of time.

Moreover, as devices’ native search functions improve, manual searches can surface personal information in seconds through keyword searches,even for photos, where it might have taken an hour of scrolling to find the same information, further showing that a time-limited search is not necessarily less privacy-invasive. What matters is not the breadth of the search itself, but the unprecedented (and growing) breadth of data on our phones.

There’s one silver lining: by relying on the fact that the search lasted two minutes, the Fourth Circuit left open the possibility that lengthier manual searches could trigger heightened suspicion requirements. But until a clear line is drawn, border officers within theFourth Circuit’s jurisdictioncan use manual searches to sidestep heightened Fourth Amendment standards that would otherwise apply. In the meantime, EFF will keep fighting against extraordinarily invasive warrantless, suspicionless device searches at the border, and for robust privacy standards to protect our most personal data.

Related Issues

Related Updates

EFF, along with the national ACLU, the ACLU affiliates in Maryland, North Carolina, South Carolina, and Virginia, and the National Association of Criminal Defense Lawyers (NACDL) filed anamicus briefin the U.S. Court of Appeals for the Fourth Circuit urging the court to require a warrant for border...

SAN FRANCISCO – A new college journalism curriculum module teaches students how to protect themselves and their digital devices when working near and across the U.S.-Mexico border. “Digital Security 101: Crossing the US-Mexico Border” was developed by Electronic Frontier Foundation (EFF) Director of Investigations Dave Maass and Dr. Martin Shelton,...

EFF, along with ACLU and the New York Civil Liberties Union, filed a secondamicus briefin the U.S. Court of Appeals for the Second Circuit urging the court to require a warrant for border searches of electronic devices, anargumentEFF has been making in the...

EFF, along with ACLU and the New York Civil Liberties Union, filed anamicus briefin the U.S. Court of Appeals for the Second Circuit urging the court to require a warrant for border searches of electronic devices, anargumentEFF has been making in thecourts...

SAN FRANCISCO—Sensor towers controlled by AI, drones launched from truck-bed catapults, vehicle-tracking devices disguised as traffic cones—all are part of an arsenal of technologies that comprise the expanding U.S surveillance strategy along the U.S.-Mexico border, revealed in a new EFF zine for advocates, journalists, academics, researchers, humanitarian aid workers, and...

When EFF set out tomap surveillance technologyalong the U.S.-Mexico border, we weren't exactly sure how to do it. We started with public records—procurement documents, environmental assessments, and the like—which allowed us to find the GPS coordinates of scores of towers. During a series of...

WithUnited 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 otherdistrictcourtshave wanted...

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...

Related Issues

Back to top

Follow EFF:

Check out our 4-star rating onCharity Navigator.

Contact

About

Issues

Updates

Press

Donate