Your privacy, and that of your clients, could be impacted if you cross the border with your electronic devices. The first ten amendments to the U.S. Constitution form the Bill of Rights. Central to those rights is the notion of privacy contained in the 4th Amendment, which protects “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” However, the U.S. Supreme Court has long held that the federal government has the right to conduct random searches of persons and conveyances crossing our international borders under what has been dubbed a “border search exception” to the 4th Amendment. U.S. Customs and Border Protection (“CBP”) has interpreted this exception to permit Customs officers at the ports of entry to conduct warrantless searches not only of people and conveyances but also of their electronic devices, including password-protected laptops, phones, and other hand-held devices. These searches are not limited to foreign nationals but can be conducted on anyone crossing the border, including U.S. citizens.
According to statistics recently released by CBP, fewer than 1% of international travelers’ devices are searched each year; however, the number of searches has also increased in the past year. The increase in searches of electronic devices, including some high profile cases, has drawn the public’s attention to the scope of CBP’s search authority at the border. Given the amount of information contained on electronic devices, it also raises some unique privacy concerns.
What is the Border Search Exception?
While often referred to as the “border search exception,” CBP’s right to conduct warrantless, suspicionless searches at the border is not really an exception to the 4th Amendment, but an interpretation of what constitutes a “reasonable” search. In United States v. Ramsey, 431 U.S. 606 (1977), the Supreme Court held that it is reasonable to conduct border searches without a warrant “simply by virtue of the fact that they occur at the border.” In another case, the Supreme Court has stated, ‘‘[i]t is axiomatic that the United States, as sovereign, has the inherent authority to protect, and a paramount interest in protecting, its territorial integrity.’’ United States v. Flores-Montano, 541 U.S. 149, 153 (2004). Indeed, ‘‘the Government’s interest in preventing the entry of unwanted persons and effects is at its zenith at the international border.’’ Id. at 152.
For this reason, the U.S. Supreme Court has held that stops and examinations are reasonable in the absence of a warrant or probable cause when they are conducted both at the U.S. border and the ‘‘functional equivalent of the border,’’ such as international airports. See, e.g., United States v. Irving, 432 F.3d 401, 414 (2nd Cir. 2005).
When Is CBP Allowed to Search an Electronic Device?
According to CBP’s policy on the search of electronic devices, officers at the ports of entry, including international airports, can search any traveler’s electronic device even in the absence of probable cause that the device contains evidence of a crime or of an immigration or customs violation. The policy states that a CBP or U.S. Immigration and Customs Enforcement agent may perform a “quick, cursory search” of an electronic device in the presence of the traveler and that if, in the course of that search, the officer finds probable cause of a crime or violation, then the device may be seized and detained for further analysis. Generally, the detention of the device should not last for longer than 5 days, but can in some cases take longer, such as if it is transferred to another agency.
In short, CBP can search any electronic device for any reason or for no reason. Therefore, travelers who do not wish to have their devices searched should not carry those devices across the border.
Are There Any Exceptions to CBP’s Authority to Search Electronic Devices?
There are almost no exceptions to CBP’s authority to search electronic devices. However, the agency policy does note that where a traveler asserts that the device contains privileged information, such as communications subject to attorney-client privilege, the officer conducting the search “must consult with the local Associate/ Assistant Chief Counsel or United States Attorney’s Office before conducting the examination.” There are currently no safeguards in place to ensure travelers that CBP officers abide by this policy. Moreover, the concern over searches of lawyers’ laptops at the border is of sufficient concern to cause the American Bar Association to write a letter to CBP expressing concern over the potential for privileged information to be intercepted by the government. Attorneys should be aware not only of the privileged materials that they personally are transporting across the border, but should also educate their clients on the need to assert the privileged nature of any communications contained on their own devices in the event that their devices are searched at the border.
Should Warrantless Searches of Electronic Devices be Permitted at the Border?
While there is a long history of judicial recognition of the federal government’s right to conduct warrantless searches of all items being carried across the border, the government should consider narrowing the application of this policy with regard to electronic devices. None of the Supreme Court decisions on border searches have specifically addressed the searches of electronic devices, but have dealt exclusively with the searches of vehicles and other containers. The lower courts have, however, addressed the issue. In United States v. Arnold, 523 F.3d 941 (9th Cir. 2008), a Canadian citizen challenged CBP’s suspicionless search of his laptop. He argued that a laptop is not a mere container like a car or a purse in which you store objects, but analogized it instead to the human mind or one’s home, in which privacy is paramount. The 9th Circuit rejected that argument, in part so as not to create a circuit split, as the 4th Circuit made a similar finding in an earlier case. See, United States v. Ickes, 393 F.3d 501 (4th Cir. 2005).
Following both CBP’s 2009 policy on the search of electronic devices, and to Arnold and Ickes, the Supreme Court heard another case, Riley v. California, 573 U.S. ___ (2014), in which they held that police officers in the interior of the United States require a warrant to search a cell phone. Riley recognizes that modern cell phones contain an unprecedented amount of personal information and concludes:
Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life,” Boyd, supra, at 630. The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple— get a warrant.
Id. at 28. Granted, Riley did not address the issue of border searches; however, it did offer new judicial recognition that electronic devices carry with them special privacy expectations, thus making CBP’s authority to search electronic devices ripe for a legal challenge. This may particularly be so in cases where CBP accesses privileged information during the course of a suspicionless search.