As we wrote in a note back in December 2020, the border search exception to the Fourth Amendment is a powerful investigative tool relied on by law enforcement to gather critical physical and digital evidence because it allows for warrantless searches of a person and the person’s belongings. The government’s use of border searches has grown over the years, particularly with respect to electronic devices. In 2022, United States Customs and Border Protection (CBP) conducted approximately 45,425 border searches of electronic devices, a 17% increase from the year prior.1 This year, the number has remained significant, with over 31,481 searches of travelers’ devices through September 2023.
In May 2023, in the Southern District of New York, Judge Rakoff upended a long-standing framework in United States v. Smith, 2023 WL 3358357 (S.D.N.Y. 2023), finding that border searches of electronic devices require federal agents to obtain a warrant supported by probable cause. It remains to be seen whether any other courts will follow Judge Rakoff’s lead.2 Given the history of precedents largely affirming the constitutionality of warrantless border searches of electronic devices, the uncertainty of the constitutional standard remains as 2023 draws to a close.
While the Fourth Amendment prohibits warrantless searches under most circumstances, the Supreme Court has long recognized an exception that allows for warrantless searches at international borders, including international airports across the nation. As the Court has explained, “[t]he Government’s interest in preventing the entry of unwanted persons and effects is at its zenith at the international border. Time and again, we have stated 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 by virtue of the fact that they occur at the border.’” United States v. Flores-Montano, 541 U.S. 149, 153 (2004) (quoting United States v. Ramsey, 431 U.S. 606, 616 (1977)). But while the Court has upheld the validity of suspicionless border searches in routine cases, it has required individualized suspicion, though not probable cause, for more intrusive searches. See United States v. Montoya de Hernandez, 473 U.S. 531, 541 (1985) (holding reasonable suspicion was necessary for search of traveler’s alimentary canal). The Court has explained that “[t]he ‘reasonable suspicion’ standard…effects a needed balance between private and public interests when law enforcement officials make a limited intrusion on less than probable cause.” Id. It has been two decades since the Court last addressed the scope of the border search exception, and in that time, individuals’ expectation of privacy has changed dramatically.
Following the Supreme Court’s lead in Montoya de Hernandez, circuit courts throughout the country have held that electronic devices implicate heightened privacy interests, and therefore federal agents must have reasonable suspicion to conduct a forensic search of an electronic device at the border. See United States v. Cotterman, 709 F.3d 952, 967-68 (9th Cir. 2013) (holding that reasonable suspicion was required for border search of laptop); United States v. Kolsuz, 890 F.3d 133, 148 (4th Cir. 2018) (finding that agents acted reasonably in searching traveler’s cell phone based on reasonable suspicion).
In response to these court cases, the Department of Homeland Security (DHS) adopted a policy in 2018 requiring agents to have reasonable suspicion to justify a forensic examination of digital devices, while maintaining suspicionless basic searches of the devices. CBP Directive No. 330-049A (2018). CBP’s policy has been the accepted framework and survived court challenges. See Alasaad v. Mayorkas, 988 F.3d 8, 17 (1st Cir. 2021). That is, until this past spring when the Smith decision was issued.
United States v. Smith
In March 2021, CBP agents detained Jatiek Smith at Newark Liberty International Airport and forced him to turn over his cell phone and its password. Smith had been under investigation by Homeland Security Investigations (HSI) and the Federal Bureau of Investigations (FBI) prior to his arrival at Newark. Instead of seeking a search warrant, HSI and FBI agents asked CBP agents to search Smith upon his arrival at the airport, pursuant to their border search authority. To prompt Smith to provide the passcode to his phone, CBP agents informed him he could be held indefinitely until the agents could access the phone. After acquiring the password from Smith, HSI agents made an electronic copy of the phone and returned the device to him. Subsequently, the agents reviewed the digital copy and identified evidence of Smith’s criminal activity.
Over a month later, the government applied for and obtained a warrant to search the forensic copy of Smith’s phone, relying in part on evidence identified through the border search review of the phone. And six months later, the government applied for a wiretap on Smith’s device and the device of another co-defendant, who was identified through the warrantless search of the phone. When Smith was subsequently indicted, he filed a motion to suppress both the search warrant and the wiretap – claiming that they were fruits of the warrantless border search that violated his Fourth Amendment right.
Judge Rakoff agreed, holding that “the government may not copy and search an American citizen’s cell phone at the border without a warrant absent exigent circumstances.” Smith at *20. In reaching that conclusion, Judge Rakoff relied on Riley v. California, 573 U.S. 373 (2014), in which the Supreme Court held that law enforcement needed to obtain a warrant to search an arrestee’s electronic devices. With regard to the court’s decision, Chief Justice Roberts noted that “modern cell phones…are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.” 573 U.S. at 385. The Court concluded that examining an arrestee’s phone went well beyond the purported rationale for the warrantless search-incident-to-arrest doctrine, which provides for suspicionless searches of an arrestee for officer safety or to discover concealed contraband.
Applying the logic in Riley to the border search context, Judge Rakoff recognized that Smith’s cell phone “likely contains huge quantities of highly sensitive information” and therefore a significant privacy interest was at stake. Smith at *23. On the other hand, Judge Rakoff considered the traditional justifications for the “border search exception,” primarily the government’s interest in preventing unwanted persons or items from entering the country. Judge Rakoff found that because “digital data exists separate and apart from” the physical device, the government’s interest in searching the forensic data on an electronic device was relatively weak. Smith at *22. Accordingly, Judge Rakoff concluded that, similar to the holding in Riley, the search of an electronic device went well beyond the rationale for a warrantless border search.
Nonetheless, Judge Rakoff rejected Smith’s request to suppress the evidence based on the “good faith” exception because the agents acted at the time “with an objectively reasonable good-faith belief that their conduct is lawful.” United States v. Zodhiates, 901 F.3d 137, 143 (2d Cir. 2018). The court found that this exception applies because (1) at the time of the unlawful search at Newark, the CBP agents had an “objectively reasonable basis” for believing that there was legal authority authorizing such a search (e.g., a 2018 CBP directive that purportedly allowed manual phone searches at the border), and (2) the government ultimately obtained a search warrant to search an electronic copy of Smith’s phone, and much of the government’s actual search of the copy of Smith’s phone occurred only after this search warrant was issued.
Implications of Smith
The authority of Smith does not extend beyond Judge Rakoff in the Southern District of New York. Indeed, the Fifth Circuit in August specifically declined to adopt the reasoning of Smith, although that court did not take a position on whether it agreed or disagreed with Judge Rakoff’s ruling.3 Moreover, circuit courts faced with a Riley argument in the past have disagreed with Judge Rakoff’s analysis. For instance, the First Circuit specifically rejected the argument, finding that “Riley does not command a warrant requirement for border searches of electronic devices nor does the logic behind Riley compel us to impose one.” 988 F.3d at 17. The court concluded that “given the volume of travelers passing through our nation’s borders, warrantless electronic device searches are essential to the border search exception’s purpose of ensuring that the executive branch can adequately protect the border.” Id.
Similar to the First Circuit, other circuits have rejected Riley challenges to the government’s border search authority. The Eleventh Circuit held that “[b]order searches have long been excepted from warrant and probable cause requirements, and the holding of Riley does not change this rule.” United States v. Vergara, 884 F.3d 1309, 1313 (11th Cir. 2018). Likewise, the Ninth Circuit held in United States v. Cano that “post-Riley, no court has required more than reasonable suspicion to justify even an intrusive border search.” 934 F.3d 1002, 1015 (9th Cir. 2019). The Seventh Circuit agreed in United States v. Wanjiku that “no circuit court, before or after Riley, has required more than reasonable suspicion for a border search of cell phones or electronically stored data.” 919 F.3d 472, 485 (7th Cir. 2019).
Given these diverging circuit opinions, Judge Rakoff’s decision in Smith is – at least at present – an outlier, and CBP has not issued any new guidance or directives in light of the decision. Nonetheless, the decision may signal a first step in the direction of curtailing the government’s digital reach at the border. Ultimately, the Supreme Court may have to step in and address the issue of the extent to which a “person’s digital life…[should] be hijacked simply by [their] crossing a border.” 709 F.3d at 965.
As discussed in our December 2020 client alert, the continuing practice raises practical questions for companies, educational institutions, and other organizations whose executives, employees, academics, researchers, and students travel to or from the United States. We reiterate the following practical considerations that may assist in developing guidance for travelers who may be affected:
- During a border search, federal agents have broad latitude to ask questions about a range of topics, including travel itineraries and visa status. A U.S. citizen or permanent legal resident is only required to answer questions establishing his or her identity and status, while visa holders and other travelers may be barred from entering the United States if they refuse to answer an agent’s questions. Nevertheless, travelers should know that they have a right not to answer an agent’s questions, but if they choose to answer, anything a traveler says could be used against them.
- Even if a border search of a phone must be supported by reasonable suspicion, that suspicion may be developed at any time prior to the beginning of the search. In other words, an agent does not need to have reasonable suspicion prior to the traveler arriving at the airport. Reasonable suspicion may be developed during a stop or interview based on various factors, including statements the traveler may make in response to agents’ questions.
- Electronic devices subject to search include not only laptops and cell phones but also other electronic storage devices, including flash drives, portable hard drives, and SIM cards.
- Travelers should consider traveling with “clean” electronic devices that do not contain all of their personal electronic data. “Clean” phones or laptops contain just the electronic data that is needed for the upcoming trip. Therefore, if phones or laptops are seized, they can be quickly reviewed and returned, and there is no risk of losing sensitive personal information.
- If traveling with an employer-owned device, travelers should consider carrying a letter from their employer confirming the traveler is authorized to possess all the information on the device.
- Travelers are not required to provide passwords to allow agents to access their electronic devices. Failure to do so, however, may result in agents seizing a device and holding it for a longer period of time as they attempt to access it through other means.
- Under CBP policy, the detention of a device “ordinarily should not exceed five (5) days.” In practice, however, it may take months before a device is returned. The policy has many exceptions that allow for longer detainments, including the need to unlock a password-protected device.
- Border stops and searches may last long enough for travelers to miss their flights. Agents are not required to end a stop or search in time for a traveler to make his or her flight, and the U.S. government will not reimburse travelers for related expenses.
- CBP policy requires agents to issue a traveler a receipt after seizing his or her device.
- The seizure of an electronic device does not necessarily mean that the owner of the device is under criminal investigation, though agents may later develop evidence supporting a criminal prosecution based on information on the device.
- Organizations would be well served to consult with counsel before engaging with the government on the matter.