In that watershed case, the Supreme Court held that the police must get a warrant to search an arrestee’s cell phone. These courts and the Smith court were informed by Riley v. Aigbekaen (2019) held that a warrant is required for a forensic device search at the border in support of a domestic criminal investigation. Similarly, the Fourth Circuit in United States v. Cano (2019) held that a warrant is required for a device search at the border that seeks data other than “digital contraband” such as child pornography. Circuit Courts Have Narrowed the Border Search Exception’s Application to Digital Dataįederal appellate courts, however, have considered this question and circumscribed CBP’s authority. The Supreme Court has not yet considered the application of the border search exception to smartphones, laptops, and other electronic devices that contain the equivalent of millions of pages of information detailing the most intimate details of our lives-even though we asked them to back in 2021. In Fiscal Year 2022, CBP conducted an all-time high of 45,499 device searches. The number of warrantless device searches at the border and the significant invasion of privacy they represent is only increasing. Customs & Border Protection (CBP) asserts broad authority to conduct warrantless, and often suspicionless, device searches at the border, which includes ports of entry at the land borders, international airports, and seaports.įor a century, the Supreme Court has recognized a border search exception to the Fourth Amendment’s warrant requirement, allowing not only warrantless but also often suspicionless searches of luggage and other items crossing the border. The Border Search Exception as Applied to Physical Items Has a Long History If the case is appealed to the Second Circuit, we urge the appellate court to affirm this landmark decision. May 11, 2023), a district court judge in New York made history by being the first court to rule that a warrant is required for a cell phone search at the border, “ absent exigent circumstances” (although other district courts have wanted to do so).ĮFF is thrilled about this decision, given that we have been advocating for a warrant for border searches of electronic devices in the courts and Congress for nearly a decade.
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