A recent federal appeals court decision shows that at least one judge thinks border agents should get a warrant before conducting forensic searches of travelers’ cell phones.

Although the majority of the three-judge panel for the U.S. Court of Appeals for the Eleventh Circuit in U.S. v. Vergara found that border agents did not need a warrant, EFF is encouraged by the dissent’s forceful conclusion that the significant privacy interests people have in their electronic devices require courts to rethink the border search exception to the Fourth Amendment’s warrant requirement.

Vergara had returned to Florida after a vacation in Mexico and was selected by U.S. Customs and Border Protection (CBP) for secondary screening. Border agents performed what is called a “forensic search” of Vergara’s cell phone—the agents used an external device and software to analyze the phone’s data—and found child pornography. Vergara moved to suppress this evidence, arguing that the forensic search violated the Fourth Amendment because it was conducted without a probable cause warrant from a judge.

EFF has long argued that the Supreme Court’s decision in Riley v. California (2014) supports the conclusion that border agents need a warrant, based on probable cause of criminality, before searching electronic devices because of the unprecedented and significant privacy interests travelers have in their digital data. In Riley, the Supreme Court followed similar reasoning and held that police must obtain a warrant to search the cell phone of an arrestee.

The Supreme Court’s pre-Riley case law, however, permits warrantless and suspicionless “routine” searches of items like luggage that travelers carry across the border, a rule known as the border search exception to the Fourth Amendment’s warrant requirement. Based on these pre-Riley cases, the government claims it has the power to search and confiscate travelers’ cell phones, tablets, and laptops at airports and border crossings for no reason or any reason, and without judicial oversight.

Unfortunately, the Eleventh Circuit majority in Vergara ruled that the cell phone evidence was properly used in Vergara’s prosecution. The court stated that “border searches never require a warrant or probable cause,” and “at most, border searches require reasonable suspicion.” This is a disappointing conclusion by the court.

By contrast, the dissenting judge in Vergara, Jill Pryor, wrote an excellent opinion in favor of travelers’ constitutional rights. She stated that in her view, “a forensic search of a cell phone at the border requires a warrant supported by probable cause.” She is the first appellate judge to reach this conclusion.

Judge Pryor’s reasoning follows almost identically arguments EFF has made, most recently in our brief opposing the government’s motion to dismiss our civil case against the Department of Homeland Security, CBP, and ICE. That case is known as Alasaad v. Nielsen.

Judge Pryor employed the balancing test used by the Supreme Court in Riley to determine whether an existing exception to the warrant requirement (in this case, the border search exception) applies to a certain category of property (in this case, cell phones). The dissenting opinion weighed travelers’ privacy interests in the digital data their cell phones contain, against the government’s interests in conducting warrantless border searches of travelers’ belongings.

Following Riley, Judge Pryor stated that “cell phones are fundamentally different from any object traditionally subject to government search at the border.” She recognized that cell phones have “immense storage capacity” and contain “vast amounts of personal information.” She wrote, “Before cell phones, border searches were limited by ‘physical realities’ that ensured any search would impose a relatively narrow intrusion on privacy… When it comes to cell phone searches, though, these ‘physical realities’ no longer exist.”

Judge Pryor further asserted that a forensic cell phone search poses a privacy intrusion “well beyond the intrusion posed by a manual search.” EFF disagrees with this conclusion because privacy interests are tied to the nature of the data, and not the method government agents use to search that data. Also, a manual search can access nearly all the private information available in a forensic search, and a manual search can take advantage of the keyword search tool built into many smartphones and laptops. Thus, we argue that all border searches of electronic devices, regardless of methodology, require a warrant. On the bright side, Judge Pryor recognized that the cell phone searches in Riley were manual searches and that the Supreme Court still required a warrant.

After determining that travelers’ privacy interests in their cell phones are weighty, Judge Pryor then evaluated the government’s side of the balancing test.

First, Judge Pryor considered whether the traditional primary rationale underlying the border search exception—customs enforcement, including contraband interdiction—sufficiently justifies conducting warrantless searches of cell phones. She concluded “no.” She wrote, “the rationales underlying the border search exception lose force when applied to forensic cell phone searches. [C]ell phones do not contain the physical contraband that border searches traditionally have prevented from crossing the border.”

Second, Judge Pryor considered whether a new “general law enforcement justification” supports conducting warrantless cell phone searches at the border. She again said “no.” She wrote that this justification is “quite far removed from the purpose originally underlying the border search exception: ‘protecting the Nation from entrants who may bring anything harmful into this country.’” She concluded, quoting Riley, “Excepting forensic cell phone searches from the warrant requirement because those searches may produce evidence helpful in future criminal investigations would thus ‘untether the rule from [its] justifications.’”

The concurring judge in the recent Fifth Circuit case U.S. v. Molina-Isidoro similarly questioned the strength of the nexus between the underlying rationales of the border search exception, and warrantless searches of electronic devices.

Finally, Judge Pryor in her Vergara dissent dismissed the idea that warrantless cell phone searches are needed to intercept any “electronic contraband.” She wrote:

[C]ell phones are ill suited to prevent the type of contraband that might be present on a cell phone from entering into the United States. Unlike physical contraband, electronic contraband is borderless and can be accessed and viewed in the United States without ever having crossed a physical border.

We made this same argument in our Alasaad brief: “unlike physical contraband, digital contraband can easily be transported across borders via the internet.”

While we are disappointed that the Eleventh Circuit majority failed to take a stand on privacy rights at the border, we are thrilled that Judge Pryor did so. We are optimistic that her persuasively argued dissenting opinion—concluding that a forensic search (at least) of a cell phone at the border requires a warrant—will help bring border search law into the digital age.