For the last decade or so, lower courts have been grappling with how the Fourth Amendment applies to searches of digital devices such as cell phones at the international border.
asserted
Amendment → grapple → border
Physical property can be searched when it crosses the border to advance sovereign interests in preventing the important of contraband, enforcing immigration laws, and making sure tariffs are paid.
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tariffs → search → laws
But do these rationales still apply to allow the search of a cell phone?
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rationales → apply → phone
When you travel internationally, should the U.S. government be allowed to search your cell phone without limit?
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government → travel → limit
Or should a warrant be required, or at least sufficient legal suspicion?
My own view is that these government interests aren't advanced by digital searches, and that a warrant should be needed to search a cell phone at the border, at least in the context of devices held by U.S. citizens.
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warrant → require → citizens
As I explained my book, The Digital Fourth Amendment, I see this as just like Riley v. California, the case holding that the search-incident-to-arrest exception does not apply to cell phones.
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exception → explain → phones
As in Riley, the physical world government interests that justify the rule for physical property just don't carry over to the digital setting.
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that → justify → setting
Extending the rule to cell phones has to "rest on its own bottom," Riley tells us, and I don't think it can.
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it → extend → us
You can't hide a person in a phone, and the data inside a cell phone isn't subject to tariffs.
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data → hide → tariffs
And while there is an interest in preventing contraband from being brought into the country in the form of digital CSAM (child sexual abuse materials), border searches of digital devices aren't actually conducted for that reason.
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searches → be → reason
The government searches phones when people cross the border for ordinary criminal enforcement reasons.
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people → search → reasons
It's trying to catch bad people, not prevent the importation of contraband.
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It → try → contraband
The government is searching at the border only because carrying cell phones paired with traditional border search powers gives them a windfall that helps them catch criminals.
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them → search → criminals
I don't think the Fourth Amendment allows them that windfall, given that these searches are categorically undertaken for ordinary criminal law enforcement, not the special sovereignty concerns justifying the border search exception.
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searches → think → exception
So I think a warrant is needed, at least for searches of citizens' devices.
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warrant → think → devices
If you want the details of my argument, you can read the chapter of the book on this posted at SSRN.
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you → want → SSRN
Yesterday, the Second Circuit disagreed, however.
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Circuit → disagree → ?
In United States v. Alisigwe, the Second Circuit ruled (per Judge Menashi) that no warrant and not even any suspicion is needed to search a cell phone at the border.
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warrant → rule → border
The case involves Chinwendu Alisigwe, a lawful permanent resident who was suspected of engagement in fraud schemes.
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who → involve → schemes
Returning to the United States from international flights, Alisigwe was stopped at JFK by border officials who asked him to unlock his phone.
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who → return → phone
He did so.
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He → do → ?
Border officials looking for fraud records skimmed through his phone and saw evidence of Alisigwe's fraud crimes.
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officials → look → crimes
According to the Second Circuit, this was categorically allowed:
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this → accord → Circuit
The "longstanding recognition that searches at our borders without probable cause and without a warrant are nonetheless 'reasonable' has a history as old as the Fourth Amendment itself."
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searches → have → Amendment
"The border-search exception is grounded in the recognized right of the sovereign to control, subject to substantive limitations imposed by the Constitution, who and what may enter the country." Id. at 620.
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what → ground → 620
Because "[t]he Government's interest in preventing the entry of unwanted persons and effects is at its zenith at the international border," United States v. Flores-Montano, 541 U.S. 149, 152 (2004), "searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border," Ramsey, 431 U.S. at 616.
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they → prevent → 616
Under our precedents, no suspicion is required before the government searches a traveler's property at the border.
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government → require → border
Searches of property "are made reasonable by that person's decision to enter this country."
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Searches → make → country
To be sure, nonroutine searches, which are "more invasive searches, like strip searches, require reasonable suspicion." Id.
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which → require → suspicion
But we have held that "the label 'non-routine' should generally be reserved for intrusive border searches of the person (such as body-cavity searches or strip searches), not belongings."
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label → hold → searches
United States v. Levy, 803 F.3d 120, 123 n.3 (2d Cir. 2015) (emphasis added).
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emphasis → add → Levy
Because a cellphone is property, our precedents establish that the government does not need to have reasonable suspicion before searching a traveler's cellphone at the border.
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government → establish → border
We reject Alisigwe's invitation to extend Riley v. California, 573 U.S. 373 (2014), to conclude that a "search of a cellphone requires a warrant, even in circumstances where a warrantless search is generally allowed."
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search → reject → circumstances
Appellant's Br. 32. Riley involved the exception to the warrant requirement for a search incident to an arrest.
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Riley → involve → arrest
That exception aims to avoid "the two risks" of "harm to officers and destruction of evidence."
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exception → aim → evidence
In Riley, the Court explained that because "[t]here are no comparable risks when the search is of digital data," the rationale for the search-incident-to-arrest exception does not have "much force with respect to digital content on cell phones."
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rationale → explain → phones
That holding does not implicate the border-search exception, which relies on a different rationale.
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which → implicate → rationale
Alisigwe asks us to limit the border-search exception to exclude searches "for evidence of crime unrelated to contraband or other border offenses."
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Alisigwe → ask → contraband
But we have previously held that "the validity of a border search does not depend on whether it is prompted by a criminal investigative motive."
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it → hold → motive
Our precedent holding that the government may perform pretextual searches at the border without a warrant means that the government is not limited to searching for contraband or evidence of border offenses.
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government → hold → offenses
…and 55 more, not listed.
The Aporia
