Can Border Patrol Search Your Phone Without a Warrant? [POLICYbrief]


At ports of entry and the extended borders,
Customs and Border Protection enjoys a broad authority to search, uh, property that belongs
to US citizens and other travelers. As things stand, CBP does not need a warrant
to search the laptops, phones, or cameras belonging to people arriving in the United
States. This is part of the long-standing exception
to the Fourth Amendment, but is very worrying at a time when cell phones and laptops are
ubiquitous among the adult population. In US v. Ramsey, then Justice Rehnquist and
his majority summarized what’s come to be called the border exception to the fourth
amendment, writing that, “Searches made at the border pursuant to the longstanding right
of the sovereign to protect itself by stopping and examining persons and property crossing
into this country are reasonable simply virtue of the fact that they occur at the border,
should by now require no extended demonstration.” He wrote that actually the ability of Border
Patrol and those in customs to inspect parcels goes back all the way to the country’s founding
generation. In fact, the Congress that passed the Bill
of Rights and sent it to the state also authorized the searches of vessels and ships in legislation. That’s been a longstanding part of the, the
United States jurisprudence, in fact, since the very beginning. In 2009, CBP’s opinion was that they did not
need reasonable suspicion or probable cause to search any electronic devices at the border
or ports of entry. In 2018, they updated that slightly, saying
that in order to forensically analyze a device, what they call an advanced search, to attach
a device to external analysis devices requires reasonable suspicion, but it is still the
case that for a so-called basic search, without attaching devices to other software, they
do not need any suspicion at all. That is, continues to be the standard at the
border, thanks to the border exception to the Fourth Amendment. In 2014, the US Supreme Court unanimously
held that police need a warrant to search a cell phone belonging to an arrested person. But that holding did not get rid of the Border
Exception to the Fourth Amendment. At the moment, there is a circuit split on
the issue. The Eleventh Circuit has held that CBP do not
need any suspicion at all to search electronic devices seized at the border. However, the Fourth and Ninth Circuits have
held that CBP need at least reasonable suspicion before conducting a forensic analysis on electronic
devices seized at the border. And that’s the standard the CBP voluntarily
enacted in that 2018 policy directive. Since that circuit split emerged, the Ninth
Circuit has had another opportunity to consider electronic device searches, and in August
of 2019 held that all electronic devices searches must be limited in scope to searches for digital
contraband, such as child pornography. The best argument against allowing warrantless
searches of cell phones at the border is that such searches are a massive violation of our
privacy. They house, uh, tons of information about
our work, our romantic lives, our family lives, our social lives. And although CBP says that they only conduct
these searches in airplane mode, uh, those kind of searches can nonetheless be highly
intrusive. The best argument against the, uh, exception
to the Fourth Amendment that we see at the border is that it oftentimes infringes on
the rights of law-abiding Americans. The best argument for the exception the the
Fourth Amendment is that there are certain interests that a state has when it deals with
visitors, uh, from other countries. Uh, and that includes issues such as national
security, so the smuggling of dangerous weapons, but also the, uh, smuggling in of contraband,
uh, whether that’s certain goods like foods, but also illegal drugs, and of course, uh,
humans who can be trafficked. The best argument in favor of warrantless
searches of electronic devices is that because cellphones are so ubiquitous, they are used
all the time for crimes, whether that’s possession of child pornography or activities related
to terrorism, other threats to national security, and that without access to electronic devices,
it would make it much harder for the federal government to investigate those kind of crimes. The argument is that without these authorities,
many criminals would slip through the nets, and that is something that CBP is very concerned
about. And it’s not a surprise, in light of that,
that they are defending the authority that they have to search not only within 100 miles,
but also to conduct warrantless searches of devices at airports.


5 Responses


    October 9, 2019 6:57 pm

    wow 100 miles from the border? more federal bureaucracy exercised some unlawful police powers.. is that a good argument against it?

  2. Dude Noone

    October 9, 2019 11:31 pm

    I think a reasonable middle ground would be that US citizens maintain their 4th amendment right while other do not.

  3. Corey Katzelnick

    October 9, 2019 11:41 pm

    Obviously this video could be improved by a brief discussion on the factual distinction (and the courts lack of a legal distinction) on the issue of "border" searches re coming into the United States and coming into the US through the border and simply being within 100 miles of the border. If you are within 100 miles, then Americans are afforded different standards of protections depending on the police agency doing the seizing and searching. That is a fickle, factless distinction.


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