On January 5, 2018, U.S. Customs and Border Protection (“CBP”) reported that in fiscal year 2017, it conducted 30,200 searches of electronic devices at border entries. CBP Releases Updated Border Search of Electronic Device Directive and FY17 Statistics (January 5, 2018), accessible at https://www.cbp.gov/newsroom/national-media-release/cbp-releases-updated-border-search-electronic-device-directive-and. The number of searches reported included devices carried by people entering and leaving the country. Approximately 0.007 percent of the approximately 397 million arriving international travelers had electronic devices in their possession searched. Id. CPB’s press release does not indicate what percentage of such searches revealed evidence of contraband, information relevant to the appropriateness of allowing the person to enter or leave the United States, or information regarding any crime. Simultaneously, CBP announced a revision of its electronic device search policy by issuing Directive 3340-049A. Border Search of Electronic Devices accessible at https://www.cbp.gov/sites/default/files/assets/documents/2018-Jan/CBP-Directive-3340-049A-Border-Search-of-Electronic-Media-Compliant.pdf .

Presumably, these searches are generally conducted without probable cause or a warrant, in reliance on the border search exception to the Fourth Amendment. See U.S. v. Flores-Montano, 541 U.S. 149, 152-53 (2004); U.S. v. Montoya de Hernandez, 473 U.S. 531, 537-39 (1985); U.S. v. Ramsey, 431 U.S. 606, 616-617 (1977); Boyd v. United States, 116 U.S. 616, 623 (1886). However, in Riley v. California, — U.S. —, 134 S.Ct. 2473 (2014), the U.S. Supreme Court held that a law enforcement exception to the warrant requirement, covering searches incident to arrest, did not permit warrantless searches of cell phones. Are warrantless searches of cell phones and other electronic devices within the permissible scope of the border search doctrine? In a split decision, the Fifth Circuit recently distinguished Riley and held that such searches were indeed permissible under the traditional border search doctrine. U.S. v. Vergara, — F.3d —, 2018 WL 1324589 (2018). The Fifth Circuit failed both to properly recognize the magnified privacy interest in electronic devices, particularly smart phones, and to fully assess the border search doctrine’s rationale in a digital age. Accordingly, the majority reached a questionable conclusion.

Directive 3340-049A. Border Search of Electronic Devices

The new CBP directive provides that a search of an electronic device may include the contents of the device, but limits such examinations to information resident on the device. Directive 3340-049A, §5.1.2. Thus, officers may not seek to access remotely-stored information. Id. The Directive defines the “border” to include the physical borders of the United States, the functional equivalent of the border, and the extended border. Id., §2.3. For a discussion of these concepts, see U.S. v. Martinez-Fuerte, 428 U.S. 543 (1976)(permitting fixed checkpoint stops on major highways near U.S. border) and Yule Kim, Protecting the U.S. Perimeter: Border Searches under the Fourth Amendment 6-9 (June 29, 2009) https://fas.org/sgp/crs/homesec/RL31826.pdf.

The Directive creates two categories of electronic device searches — “basic” and “advanced.” Id., §§5.1.3 & 5.1.4. A basic search may be conducted “with or without” suspicion, and is any search that does not constitute an advanced search. Id., §5.1.3. An advanced search is one in which an officer connects external equipment to the traveler’s electronic device “to review, copy, and/or analyze its contents.” Id., §5.1.4. Advanced searches require “reasonable suspicion” or a “national security concern,” and all advance searches require supervisory approval. Id. The Directive explains that “[m]any factors may create reasonable suspicion or constitute a national security concern; examples include the existence of a relevant national security-related lookout in combination with other articulable factors as appropriate, or the presence of an individual on a government-operated and government-vetted terrorist watch list.” Id. All electronic device searches must be documented, and advanced searches must be conducted in the presence of a supervisor. Id., §5.1.5. Searches must also be conducted “in the presence of the individual whose information is being examined,” unless there are “national security, law enforcement, officer safety, or other operational considerations” that make the traveler’s presence inappropriate. Id., §5.1.6. An officer may detain the device, or copies of the information it stores, “for a brief, reasonable period of time to perform a thorough border search.” Id., §5.4.1. But the Directive contemplates that some searches may require detention of the device or its content for up to 5 days.

U.S. v. Vergara

Vergara arose out of a border search conducted before CBP promulgated the new Directive. Vergara, an American citizen, arrived at the port of Tampa after a round trip cruise to Cozumel. Slip op. at 3 (Jill Pryor, dissenting). CBP officers were on the look-out for Vergara based on his prior conviction for child pornography. Id. A CBP officer asked Vergara to turn on his Samsung phone. Id. at 1. The officer looked through the phone’s contents for five minutes and found a video of two topless female minors. Id. After a more extensive “forensic” examination of the phone revealed additional child pornography, Vergara was indicted on charges of transportation and possession of child pornography. Id. He was convicted after a bench trial on stipulated facts. Vergara challenged the constitutionality of the initial and forensic searches of the contents of his phone.

The majority did not address Vergara’s challenge to the initial search because none of the images viewed during the search were entered into evidence. Id. at 2. The majority noted that the “forensic” searches had been based on reasonable suspicion. In a brief opinion, the majority explained that the Supreme Court had expressly limited its holding in Riley to the search-incident-to-arrest exception. Id. at 2. The case had not changed the longstanding rule that border searches were not subject to the warrant and probable cause requirements. Id. at 3.

In dissent, Judge Jill Pryor acknowledged that Riley was not directly on point, given that it did not involve a border search. Id. at 3, 8. But unlike the majority, she considered Riley applicable to cell phone searches in other contexts, including searches executed at border entries. Id. at 8. She noted that the Court’s recognition that searches of cell phones posed unique privacy threats given their immense storage capacity and the types of comprehensive and sensitive information about the phone’s owner such devices contained. Id. at 5-6. She noted that the search in Riley was a manual, rather than a forensic search of a cell phone, but that the Riley Court had concluded that even a manual search of a cell phone raised sufficiently serious privacy implications to justify enforcing the warrant and probable cause requirements. Id. at 6. In her view, the forensic search made of Vergara’s phone was even more intrusive than the manual search at issue in Riley. Not only do forensic searches reveal “a wealth of information about how the [device] and its contents have been used,” but in addition they are “capable of unlocking password-protected files, restoring deleted material, and retrieving images viewed on web sites.” Id. at 6 (quoting Orin S. Kerr, Searches and Seizures in a Digital World, 119 Harv. L. Rev. 531, 542 (2005) and U.S. v. Cotterman, 709 F.3d 952, 957 (9th Cir. 2013)).

Moreover, in her view, “the rationales underlying the border search exception lose force when applied to forensic cell phone searches.” Vergara, slip op. at 6. She noted that the border search exception is rooted in the government’s interest in controlling ‘who and what may enter the country.’” Id. Border searches have traditionally focused on detecting physical contraband, but a cell phone’s digital contents do not harbor physical contraband. And electronic contraband, unlike physical contraband, “is borderless and can be accessed and viewed in the United States without ever having crossed a physical border.” Id. Acknowledging that forensic searches of cell phones may reveal information that would lead to the discovery of physical contraband, she noted that such a “general law enforcement justification is quite far removed from the purpose originally underlying the border search exception: ‘protecting this Nation from entrants who may bring anything harmful into this country.’” Id. at 7 (quoting U.S. v. Montoya de Hernandez, 473 U.S. at 544).

Are Border Warrantless Searches of Cell Phone and Other Electronic Devices Constitutional?

Riley is a part of the Supreme Court’s re-evaluation of its anemic view of privacy. It recognizes the uniqueness of smart phones in particular as a locus of privacy because of such devices’ unprecedented technological capabilities. Critical to that determination were four factors, which even the Vergara dissent did not fully explicate. First, “a cell phone collects in one place many distinct types of information—an address, a note, a prescription, a bank statement, a video—that reveal much more in combination than any isolated record.” 134 S.Ct. at 2489. Second, the phone’s capacity allows even just one type of information to convey far more than previously possible. For example, instead of one or two photographs of loved ones a person may carry around in a wallet, the “sum of an individual’s private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions” that can be held by a cell phone. Id. Third, data on the phone can date back for years. For example, “a person might carry in his pocket a slip of paper reminding him to call Mr. Jones; [but] he would not carry a record of all his communications with Mr. Jones for the past several months, as would routinely be kept on a [smart] phone.” Id. Finally, many of the more than 90% of American adults who own cell phones keep on their person a digital record of nearly every aspect of their lives. Id. at 2490. The fact that the search of a cell phone takes place at an international border diminishes none of these implications. While the Court had held that individuals’ reasonable expectations are diminished at border crossings, U.S. v. Flores-Montano, 541 U.S. at 154, ultimately, such a location-driven focus cannot be dispositive — the Fourth Amendment “protects people, rather than places.” Katz v. United States, 389 U.S. 347, 351 (1967).

The Riley Court did not distinguish manual searches from forensic ones, having no occasion to do so in the search incident to arrest context. Yet some of the implications that most disturbed the Court, for example the ability to analyze simultaneously various types of information on a smart phone, are no doubt particularly implicated by forensic searches. With its revised Directive, CBP is clearly seeking to distinguish manual searches, denominated “basic,” from “forensic” searches, to differentiate the quantum of suspicion necessary for each. See Riley, 134 S.Ct. at 2491 (expressing concern regarding smart phone’s capabilities of accessing data not resident on the device).

Moreover, the purposes of the border searches do not correlate well with the matters likely to be revealed by searches of a cell phone’s digital content, as the dissenting judge suggested. Border searches are not justified by exigent circumstances, U.S. v. Ramsey, 431 U.S. at 621-22, as are, for instance, searches incident to arrest. Rather they are grounded in the government’s power to exclude contraband, collect appropriate import duties, and determine whether a person can lawfully enter the country. U.S. v. Ramsey, 431 U.S. at 618 (“[t]ravelers may be so stopped in crossing an international boundary because of national self protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in”). Thus, the border searches’ twin purposes are identifying contraband and identifying the persons who present themselves for entry.

The Court’s leading case, Boyd, offers a very limited view of the contraband justification.

The search for and seizure of stolen or forfeited goods, or goods liable to duties and concealed to avoid the payment thereof, are totally different things from a search for and seizure of a man’s private books and papers for the purpose of obtaining information therein contained, or of using them as evidence against him. . . . In the one case, the government is entitled to the possession of the property; in the other it is not. The seizure of stolen goods is authorized by the common law; and the seizure of goods forfeited for a breach of the revenue laws, or concealed to avoid the duties payable on them, has been authorized by English statutes for at least two centuries past; and the like seizures have been authorized by our own revenue acts from the commencement of the government.

116 U.S. at 623. In short, discovering contraband is distinct from collecting evidence. Thus, in upholding a policy of opening international mail to detect the presence of physical contraband, the Court pointedly noted that the policy precluded agents from reading the correspondence. U.S. v. Ramsey, 431 U.S. at 624 (discussing First Amendment “chill” of border search of international mail).

As the Vergara dissenter suggested, given the intangible nature of electronic contraband, the entry or departure of such information can be accomplished without ever physically crossing the U.S. border. Thus it is much less likely that CBP will discover electronic contraband by searching devices than that they will discover physical contraband by searching cars, suitcases, individuals’ alimentary cavities. All too frequently we have seen intrusions into the United States by hackers that do not require physical entry into the United States.

The control over who enters the United States, ensuring that the persons who present themselves at the border are who they purport to be and are entitled to enter, might theoretically justify cell phone searches without warrant, probable cause, or reasonable suspicion. Even here, however, reliance of biometric identifiers to ensure the identity of the person who seeks entry, see https://www.dhs.gov/obim-biometric-identification-services (describing how DHS’ Office of Biometrics Identity Management uses biometric identifiers to assure identity), is surely more reliable than rummaging through the contents of the cell phones they carry.

Moreover, the entitlement of individuals to enter the country may vary depending on their status. For those seeking entry who have no ties to the United States, intrusive border searches could also rest on the concept of consent, namely the Government’s absolute right to exclude the person from the United States. See, Kleindeist v. Mandel, 408 U.S. 753, 762 (1972) (holding that unadmitted and nonresident aliens have no constitutional right to enter the United States). There is presumably less of a right to absolutely exclude American citizens, lawful permanent residents, or perhaps even others who have merely established presence in the United States from returning to the United States, See See Kwong Hai Chew v. Colding, 344 U.S. 590, 598 n. 8 (1953); Landon v. Plasencia, 459 U.S. 21, 33–34 (1982); Washington v. Trump, 847 F.3d 1151, 1165 (9^th Cir. 2017), cert. denied, Golden v. Washington, — U.S. —, 138 S.Ct. 448, (2017); Latif v. Holder, 28 F.Supp.3d 1134, 1148-50 (D. Ore. 2014), appeal dismissed, Dkt. 14‑36027 (9th Cir. Dec. 31, 2014)(finding liberty interest in international travel by airplane for plaintiffs who were either citizens or lawful permanent residents); see also, Trump v. International Refugee Assistance Project, — U.S. —, 137 S.Ct. 2080, 2088 (2017).

It is also not clear why the Government’s interest in who is departing from the United States is as great as its interest in who is entering the country. While the Supreme Court has not ruled on the issue, the Courts of Appeal have been consistent in refusing to distinguish entry and exit searches in terms of the border search doctrine. See, e.g., U.S. v. Oriakhi, 57 F.3d 1290, 1296 & n.3 (4^th Cir. 1995)(citing cases); accord, Directive 3340-049A, §4 (same). This judicially-declared equivalence has been the subject of criticism. United States v. Ezeiruaku, 754 F. Supp. 420, 435-37 (E.D.Pa.1990), reversed, 936 F.2d 136 (3d Cir.1991); Harris J. Yale, Beyond The Border of Reasonableness: Exports, Imports And The Border Search Exception, 11 Hofstra L. Rev. 733 (1983). And even the justifications offered for exit searches, namely enforcement of currency and other export restrictions, see U.S. v. Oriakhi, 57 F.3d at 1296-97 (noting the “sovereign’s interest in regulating foreign commerce and, in particular, in regulating and controlling its currency”), have little to do with who can exit the country. Surely the risks of “undesirable” persons entering the United States is much more compelling than the risks associated with “undesirable” persons leaving the country. Whether or not such a diminished government interest is sufficient to justify exit searches in general, it surely makes the government’s interest less weighty in comparison with the considerable privacy interest in cell phones and other electronic devices.

Predictions regarding likely Supreme Court rulings on legal issues that have such freighted political implications are quite hazardous, particularly in an area when the balancing of starkly competing interest is often quite fact-dependent. See, e.g., U.S. v. Villamonte-Marquez, 462 U.S. 579, 588-89 (1983)(distinguishing “roving” stops of marine vessels and cars). Nevertheless, the power to search cell phones and other electronic devices without suspicion, in the case of basic searches, and without a warrant based on probable cause, in the case of advanced searches, rests on shaky ground. It is likely that other federal courts will weigh in on this questions, and the Supreme Court will likely be called upon to take up the issue in the near future.

Bernard W. Bell is a Professor of Law and Herbert Hannoch Scholar at Rutgers Law School.