By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She now spends much of her time in Asia and is currently working on a book about textile artisans.

The Electronic Frontier Foundation (EFF) and the American Civil Liberties Union (ACLU) filed suit against the Department of Homeland Security (DHS), US Customs and Border Protection (CBP), and US Customs and Immigration Enforcement (ICE) last week on behalf of 11 travelers whose smartphones and laptops were subjected to warrantless searches at the US border.

As the EFF and ACLU spelled out in a press release announcing the suit:

The plaintiffs in the case are 10 U.S. citizens and one lawful permanent resident who hail from seven states and come from a variety of backgrounds. The lawsuit challenges the government’s fast-growing practice of searching travelers’ electronic devices without a warrant. It seeks to establish that the government must have a warrant based on probable cause to suspect a violation of immigration or customs laws before conducting such searches.

The practice of searching electronic devices at the border did not originate with the Trump administration. The number of such searches began to climb in 2016, and has increased further during the Trump administration, as Table 2 below se EFF/ACLU hows. (I realize that the figures only cover a short period and would have liked to be able to present more comprehensive numbers; these were the best I was able to find. Some additional numbers can be found in the EFF/ACLU press release.)

Table 1

Table 2

Source: US Customs and Border Protection, CBP Releases Statistics on Electronic Device Searches (April 11, 2017).

Business Insider reports:

As the US Customs and Border Protection (CBP) outlines in a tearsheet it provides to people at the border, federal agents today can seize and search your phone, and even make a copy of it to have forensic experts analyze its contents off-site. “This isn’t rogue officers; this is the official, written policy of the US government,” Adam Schwartz, senior staff attorney with the Electronic Frontier Foundation (EFF) said in a conference call on Wednesday.

And, I should add, they do all this, every day– without securing any warrants.

Permit me to quote from that CBP tearsheet at length:

What Happens Now?

You’re receiving this sheet because your electronic device(s) has been detained for further examination, which may include copying. You will receive a written receipt (Form 6051-D) that details what item(s) are being detained, who at CBP will be your point of contact, and the contact information (including telephone number) you provide to facilitate the return of your property within a reasonable time upon completion of the examination. The CBP officer who approved the detention will speak with you and explain the process, and provide his or her name and contact telephone number if you have any concerns. Some airport locations have dedicated Passenger Service Managers who are available in addition to the onsite supervisor to address any concerns.



Return or Seizure of Detained Electronic Device(s) CBP will contact you by telephone when the examination of the electronic device(s) is complete, to notify you that you may pick-up the item(s) during regular business hours from the location where the item(s) was detained. If it is impractical for you to pick up the device, CBP can make arrangements to ship the device to you at our expense. CBP may retain documents or information relating to immigration, customs, and other enforcement matters only if such retention is consistent with the privacy and data protection standards of the system in which such information is retained. Otherwise, if after reviewing the information, there exists no probable cause to seize it, CBP will not retain any copies. If CBP determines that the device is subject to seizure under law – for example, if the device contains evidence of a crime, contraband or other prohibited or restricted items or informa- tion – then you will be notified of the seizure as well as your options to contest it through the local CBP Fines, Penalties, and Forfeitures Office.

Does Riley Apply at the Border?

Now, for even those with only a cursory knowledge of constitutional law, this must seem problematic. Doesn’t the Fourth Amendment to the US Constitution-– which in theory protects against “unreasonable searches and seizures”– apply here? Particularly its warrant requirement– which I saw no mention of among the CBP bureaucratese.

In a unanimous 2014 decision, Riley v. California, the Supreme Court held that police generally may not search digital information on a cellphone seized from an individual who has been arrested, in the absence of a warrant.

Yet in cases such as the 1976 United States v. Martinez-Fuerte, the Supreme Court has chipped away at the Fourth Amendment requirements, articulating a border search exception.

As I’ve discussed previously in Feds Concede Can’t Search Cloud Data at Border for US Citizens, a key case, United States v. Montoya, was decided in 1985 and Chief Justice William Rehnquist wrote the opinion, more or less shredding that quaint notion that warrants are necessary for border searches:

Consistently, therefore, with Congress’ power to protect the Nation by stopping and examining persons entering this country, the Fourth Amendment’s balance of reasonableness is qualitatively different at the international border than in the interior. Routine searches of the persons and effects of entrants are not subject to any requirement of reasonable suspicion, probable cause, or warrant, and first-class mail may be opened without a warrant on less than probable cause (citations omitted).

So, what the EFF/ACLU lawsuit is testing, is which considerations will apply? Does Riley apply at the border, requiring a warrant based on probable cause for a search of electronic devices to proceed? Or, does the border search exception hold, meaning that the government’s current policy– outlined in the tearsheet– is perfectly constitutional? Or does some other standard apply?

The sole appellate decision to consider the issue of border searches of electronic devices doesn’t come down clearly on either pole. The US Court of Appeal for the Ninth Circuit held in the 2013 case US v. Howard Wesley Cotterman that government agents must demonstrate a reasonable suspicion of criminal wrongdoing before doing a full forensic search of electronic devices, e.g., when full contents of a device are downloaded and examined. Government agents can do a cursory search, however, absent that suspicion. (I should mention that the decision is binding in the jurisdiction covered by the Ninth Circuit but not beyond.)

A subsequent decision by a California federal district court– has held that the border search exception trumps Riley at the border and that therefore, the government need not seek a warrant before doing a cursory search of your cellphone (see the further discussion in this Techdirt piece, Court: Border Search Warrant Exception Beats Riley In The ‘Constitution-Free Zone’).

The Supreme Court has yet to consider the issue, leaving government agents a considerable degree of latitude to conduct searches of these devices. As per Business Insider:

“Searches of people at the border is an area where there’s a wide gap between what we think people’s rights are and what their facts are on the ground,” Nathan Freed Wessler, a staff attorney with the ACLU, told Business Insider in February. “Various courts haven’t had an opportunity to weigh in on these issues yet, so CBP is operating with a lot of claimed authority and a lot of latitude.”

On the Ground Reality

The EFF/ACLU complaint lays out details of the plaintiffs’ encounters with government agents at the border, describing in vivid detail the facts of that on the ground reality. As summarised in another Techdirt piece, EFF, ACLU Sue Government Over Warrantless Electronic Searches At The Border:

All plaintiffs were taken to secondary screening where they were coerced into handing over their devices and, in some cases, passwords. This is all being done with zero articulable suspicion or probable cause. Agents imply devices will be returned sooner if those they’ve detained are compliant. But even complicity can result in citizens having to leave their devices in the hands of the government.

In addition to the Fourth Amendment claim, the complaint raises a First Amendment claim. Out of the eleven plaintiffs, two are journalists, one a college professor, one a writer, and one a filmmaker. Government agents not only searched the electronic devices of the journalists, but questioned these individuals about both their sources and the content of their work.

Note that as the Techdirt piece on the EFF/ACLU lawsuit recognizes, an individual need not be a journalist for the First Amendment to apply:

Even the plaintiffs who aren’t journalists have valid First Amendment complaints. If the government’s going to demand access to writings, photos, videos, and other forms of expression stored on electronic devices, this limits future expressive acts. People whose devices have been seized and searched are less likely to give the government as much to dig through the second time around. This means less writing, fewer photos, and steering clear of any artistic creation the government might somehow misconstrue as threatening, criminal, or simply critical of rote government abuse.

Possible Outcome?

It would be highly premature for me to speculate how the Supreme Court might decide this case, if indeed such a decision ever reaches that court and is made on the merits. Some of the initial coverage of this issue, in my opinion, was entirely too optimistic over the prospects for this lawsuit.

The reality is that the courts have been only too willing to defer to the government whenever the mantra of national security is invoked. And even if that were not the case, the Supreme Court currently hears fewer than 100 cases per year. So I’m not optimistic about the prospects for this lawsuit establishing a firm constitutional warrant requirement before electronic devices can be searched at the US border.

As I discussed in my previous post on this topic (cited above), Senator Ron Wyden has introduced legislation that would require warrants to be obtained before searches are conducted of electronic devices at the US border. That’s unlikely to be achieved in the current Congress– to say the least, and even if it were, Trump would almost certainly veto it.

But nor is one’s privacy an entirely lost cause either. The attention Wyden and others have devoted to these issues did force the government to concede that it lacks authority to access data stored only on the cloud when its agents examine the electronic devices of US citizens crossing the border. I guess we should see that as the small– very small– victory that it is. And if one wants to protect one’s privacy when crossing into the US, it’s necessary to plan ahead to safeguard data.

Because as things stand now, US government agents are certainly not going to do so.