Returning to the U.S.? We’ll Need to See Your Phone First

May 23, 2018


A federal judge refused to dismiss a case brought by ten United States Citizens and one lawful permanent resident. Plaintiffs had been returning to the United States when Customs and Border Protection (“CBP”) conducted a warrantless search on their cellphones and/or other electronic devices. Plaintiffs claimed that this was illegal under the First and Fourth Amendments, while the Defendants claimed that Plaintiffs lack standing and that the searches fell within the “border search exception.” The judge relied heavily upon Riley, a 2014 Supreme Court case discussing the intersection of cellphones and warrantless searches, in deciding that this case should be more fully developed before being ruled upon.

The Plaintiffs

The plaintiffs include an owner/operator of a security technology company that supplies the federal government, an engineer at NASA’s Jet Propulsion Laboratory, and an Air Force veteran.

These eleven are not unique, and the number of warrantless searches of electronics searched by CBP and Immigrations and Customs Enforcement (“ICE”) is rising. By way of illustration, CBP conducted 8,503 searches of electronic devices in 2015, but were on track to complete 30,000 in 2017. These searches can be manual (where the traveler unlocks his or her device and CBP looks through it the way a user might) or forensic (where CBP hooks the device up to their own equipment to create a perfect copy) and it can take up to a year to return the electronics. Some of the plaintiffs’ phones and laptops were for mixed business/personal use.

The plaintiffs were coming from all over the world and entering the United States through many different points. Some points of entry include Highgate Springs in Vermont (coming from Quebec), Dallas-Fort Worth Airport (coming from Dubai), San Francisco International Airport (coming from Belgium), and Denver International Airport (coming from Tokyo).

The Law

The First Amendment protects freedom of speech, freedom of expression, and freedom of the press. Plaintiffs argue that the searches being conducted by CBP interfere with these freedoms by stifling that speech; some may be afraid to speak on the chance that the government will forensically rip it from the deleted portion of their hard drives. Plaintiffs point to several journalists among their number, including some who believed they were targeted due to speech abroad that might be perceived as critical of the United States. Am. Compl. at ¶ 46.

The Fourth Amendment prohibits unreasonable search and seizure. The “border search exception” really goes to the reasonableness of the search. (“Border searches must still be ‘reasonable’” quoting United States v. Montoya de Hernandez (473 U.S. 531, 539, 105 S.Ct. 3304)). This “exception” merely recognizes that what is reasonable is different at the border, due to an understanding “as old as the United States itself.(citing Ramsey, 431 U.S. at 616-17, 97 S.Ct. 1972). Later cases have moved the border to any port of entry, such as an international airport. The Attorney General also issued a regulation stating that the border search exception should apply anywhere within 100 miles (as the crow flies) of the border.

The last piece of law, important to our understanding of this decision, is Riley. There, the United States Supreme Court effectively recognized the uniqueness of a cellphone outweighed the ancient underpinnings of the search-incident-to-an-arrest. Law enforcement makes many arrests every day, and for many different reasons. A person’s electronics, such as a cellphone, may contain the entirety of his or her life. Examples include a complete medical history or a religious affiliation.

A New Balance?

 Judge Casper balanced the similarity of the search-incident-to-arrest exception from Riley against the border search exception in this case, indicating that there were some similarities while admitting that there might be some differences. Next, the judge quoted Riley where the Court said: “[m]odern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse.” The judge ultimately denied the motion to dismiss on this claim, under the standard that dismissal is lenient towards plaintiffs, saying: “the Court is not persuaded that Plaintiffs have failed to state a plausible Fourth Amendment claim here. Although Defendants may be correct that the border is different, see D. 15 at 23-27, the Supreme Court and First Circuit have acknowledged that digital searches are different too . . . .”

The Future of Privacy

Discovery will commence. Arguments will be made. Hopefully the merits will be heard. Until then, an increasing number of travelers may find their electronics searched or confiscated by CBP. Between decisions such as these and the commencement of the GDPR in the EU, it’s clear that privacy will be a primary concern of citizens everywhere in 2018 and beyond. To quote Justice Stewart in Almieda-Sanchez v. U.S., “It is well to recall the words of Mr. Justice Jackson, soon after his return from the Nuremberg Trials:

These [Fourth Amendment rights], I protest, are not mere second-class rights but belong in the catalog of indispensable freedoms. Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government.

Almeida-Sanchez v. United States, 413 U.S. 266, 266, 93 S. Ct. 2535, 2536 (1973), quoting Brinegar v. United States, 338 U.S. 160, 180, 69 S.Ct. 1302, 1313 (Jackson, J., dissenting).

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Image Credit: REUTERS/Mike Blake/File Photo

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