Borderline Privacy Invasion: The Battle for Warranted Device Searches Heats Up

Hot Take:

Apparently, crossing the border with a cellphone is akin to smuggling contraband these days. Who knew that your selfies and cat videos could potentially be of interest to border officers? While EFF and its pals are fighting the digital privacy battle, let’s hope they can keep our phones safe from the prying eyes of customs. Just imagine the border officers’ disappointment when the only thing they find on your phone is a collection of dad jokes!

Key Points:

• The EFF, ACLU, and NYCLU are pushing for a warrant requirement for border device searches.
• The case in question involves a traveler whose phone was searched without a warrant by border officers.
• The district court ruled that warrantless searches violate the Fourth Amendment but allowed evidence due to “good faith.”
• Fiscal Year 2023 saw a whopping 41,767 device searches at U.S. borders.
• EFF argues that digital data should not be treated like physical contraband.

From Selfies to Suspicions

In the ongoing saga of digital privacy versus border security, the EFF is once again taking the lead, this time alongside the ACLU and NYCLU. Their mission? To ensure that travelers aren’t subjected to warrantless searches of their electronic devices at the U.S. border. This is no small feat, considering the longstanding tradition of border search exceptions to the Fourth Amendment’s warrant requirement. But hey, who needs privacy when you can have the government perusing your vacation photos?

The Case of the Curious Cellphone

The spotlight is on U.S. v. Smith, where a traveler returning from Jamaica found himself in hot water at Newark airport. Detained by border officers at the FBI’s request, his cell phone was given a forensic once-over. The investigation linked him to a conspiracy involving insurance fraud and extortion in the New York EMS industry. In a twist of legal gymnastics, the district court ruled that such searches require a warrant. Yet, in a nod to “good faith” (and perhaps a lack of GPS), the evidence was still used against Mr. Smith.

Searches on Steroids

The numbers are in, and they aren’t pretty: 41,767 device searches were conducted by U.S. Customs and Border Protection in Fiscal Year 2023. That’s a lot of phones, tablets, and laptops being rifled through like they’re more interesting than the duty-free shop. The EFF argues that these searches represent a significant invasion of privacy, especially when the government can peek into the personal lives of travelers without so much as a warrant.

Riley to the Rescue?

The EFF hopes that the Supreme Court’s ruling in Riley v. California will lend a helping hand. In that case, the Court decided that police need a warrant to search an arrestee’s phone. The EFF posits that the same logic should apply to border searches, given the treasure trove of personal data stored on today’s devices. In other words, the government should keep its hands off your digital diary unless they’ve got a darn good reason.

Contraband Conundrum

Digital data isn’t exactly the same as a suitcase full of illicit substances. The EFF argues that looking for contraband in your phone is a bit like searching for a needle in a haystack, especially when cloud technology means that the data is likely already floating around somewhere else. Moreover, using device searches to gather evidence for domestic law enforcement is straying far from the original purpose of border checks. It’s like using a fishing net to catch a butterfly.

Unreasonable Suspicion

If the Second Circuit isn’t convinced to require a warrant, the EFF suggests a compromise: limit searches to instances where there’s reasonable suspicion of digital contraband, and keep the scope narrow. It’s a nod to a similar rule set by the Ninth Circuit in U.S. v. Cano, which insists that all searches should be focused on finding digital contraband. After all, your contact list can’t exactly smuggle drugs or weapons.

Rallying for Rights

The EFF isn’t stopping with Smith. They’re also filing briefs in other district court cases like U.S. v. Sultanov and U.S. v. Fox, hoping that one of these cases will lead to a sweeping decision in favor of digital privacy. With any luck, the Second Circuit will become a trailblazer in protecting Fourth Amendment rights at the border. Until then, travelers might want to keep their phones locked and their data backed up—preferably somewhere customs can’t reach.