Extraction, Retention, and Use: Applying Use-Restrictions to Fourth Amendment Forensic Electronic Device Search Doctrine at the Border
Forensic electronic device searches are a formidable weapon in a border protection agents’ arsenal. Agents download the data from an electronic device and may store it for up to fifteen years, where it can be accessed by thousands Department of Homeland Security (DHS) agents with minimal controls. Annually, agents collect the forensic digital data of over 40,000 international travelers. The border constitutes an exception to typical Fourth Amendment protections against unreasonable searches and seizures, as officials may search individuals crossing the border without a warrant or reasonable suspicion. At least one circuit has held that the Fourth Amendment’s protections pose no limit on whose or what electronic data may be collected when a traveler crosses the international border.
It is unacceptable to use the Fourth Amendment border exception to not only search, but also copy, retain, query, and share traveler data, with little evidence to support the action. Use of data gathered under the border exception should be limited to the purpose of the border exception: protecting the border. This Comment proposes that Fourth Amendment doctrine at the border should apply use-restrictions to properly balance individual privacy against the government’s deep national security interests.
This Comment addresses the splintering doctrine between the First, Fourth, Ninth, and Eleventh Circuits regarding the Fourth Amendment limitations to performing forensic electronic searches at the border. Use restrictions consider each use of data—extracting, retaining, querying, and sharing—as a separate Fourth Amendment search, subject to a separate reasonableness analysis. This Comment will argue that applying such restrictions in the border context prevents the government from using data collected under a narrow exception for broader purposes that would otherwise require a warrant.
- I. Introduction
- II. Privacy protections for Border Searches
- A. Fourth Amendment Doctrine Protects Against Unreasonable Searches by Weighing the Intrusion on an Individual’s Privacy Against the Government’s Interest
- B. The Border Exception’s Historic Origins
- C. Limits to Justifying Searches Under the Border Exception
- D. Modest Legislative and Administrative Protections from Border Searches
- III. Use Restrictions As Limits to Fourth Amendment Data Searches
- IV. Applying the Border Exception to Forensic Cell Phone Searches
- A. Are Forensic Electronic Device Searches Within the Scope of the Border Exception?
- B. What Level of Suspicion is Required for Forensic Electronic Device Searches?
- C. Use Restrictions Could Resolve Circuit Splits Regarding the Purpose and Suspicion Requirement for Forensic Electronic Device Border Searches
- V. Applying Use Restrictions to the Border Search Exception
- A. Extracting Data Requires No Suspicion Under the Border Exception While Storing Data Requires Probable Cause of Contraband
- B. Uses of Extracted and Stored Data Should Require No Suspicion for Querying Known Contraband, Reasonable Suspicion for Searching for Potential Contraband, and a Warrant Upon Probable Cause for Any Other Purposes
- C. CBP Compliance with a Use-Restriction Regime Does Not Compromise National Security
- D. Benefits to Shifting to a Use Restriction Analysis
- VI. Conclusion
I. Introduction
TOPBorder Protection Agents enjoy almost unfettered discretion to confiscate a person’s belongings. This is because border searches constitute an exception to the Fourth Amendment’s requirement that government officials generally must obtain a warrant before conducting a search. Under the exception, courts permit, without any level of suspicion, full searches of mobile living quarters;1
See, e.g., United States v. Alfaro-Moncada, 607 F.3d 720, 732 (11th Cir. 2010).
See, e.g., United States v. Flores-Montano, 541 U.S. 149, 155 (2004).
See, e.g., United States v. Touset, 890 F.3d 1227, 1233 (11th Cir. 2018).
This overreach into the data of citizens and noncitizens should prompt concern even among those who have nothing to hide. For example, following the U.S. National Security Agency’s (NSA) expanded access to citizens’ personal phone information, some NSA employees began “using secret government surveillance tools to spy on the emails or phone calls of their current or former spouses and lovers[.]”4
See Alina Selyukh, NSA Staff Used Spy Tools on Spouses, Ex-lovers: Watchdog, Reuters (Sep. 27, 2013), https://www.reuters.com/article/idUSBRE98Q14H/ [https://perma.cc/P4PT-UXW8].Congress has since implemented statutory restrictions to limit this practice and other intrusions into U.S. person’s privacy. See Brittany Adams, Striking a Balance: Privacy and National Security in Section 702 U.S. Person Queries, 94 Wash. L. Rev. 401, 405 (2019).
Letter from Troy Miller, Acting Comm’r of U.S. CBP to Sen. Ron Wyden, at 2 (Jan. 24, 2023) [hereinafter CBP Letter].
The Fourth Amendment search and seizure doctrine on data collection practices is unsettled, especially in the border search context. Employees of the U.S. Department of Homeland Security (DHS)—which include people who work for U.S. Immigration and Customs Enforcement (ICE) and CBP—currently have full access to electronic device data from forensic border searches. Forensic electronic device searches can involve a breadth of activities.6
See United States v. Cano, 934 F.3d 1002, 1008–09 (9th Cir. 2019) (distinguishing between a “manual search of a cell phone” where an agent browsed the call log and wrote down information stored on it versus a “forensic cell phone search” where the agent used a software to download all data stored locally on the phone).
See, e.g., id. at 1008.
This Comment argues that CBP’s electronic device search policy violates the Fourth Amendment because it fails to consider suspicion requirements for reasonable use of data after retention. In 2017, CBP conducted 30,200 electronic device searches without any requirement for probable cause or reasonable suspicion.8
See CBP Releases Updated Border Search of Electronic Device Directive and FY17 Statistics, U.S. Customs and Border Prot. (Jan. 5, 2018), https://www.cbp.gov/newsroom/national-media-release/cbp-releases-updated-border-search-electronic-device-directive-and [https://perma.cc/7R89-GMF4].
Dept. of Homeland Sec., U.S. CBP Directive 3340-049A.2.3, Border Search of Electronic Devices 5 (2018) [hereinafter 2018 CBP Directive re Border Search of Electronic Devices].
See CBP Enforcement Statistics, U.S. Customs and Border Prot. (Apr. 17, 2024), https://www.cbp.gov/newsroom/stats/cbp-enforcement-statistics[https://perma.cc/A7ZT-WF65].
Through only modest adjustments to its internal policies of data usage after collection, CBP could easily comply with the Fourth Amendment. Such adjustments to its internal policies would not only more effectively protect the privacy interests of international travelers, but also give enforcement agencies the necessary flexibility to go after contraband and smugglers that endanger national security.
This Comment proposes that courts should limit CBP search and seizures of forensic electronic device data through use restrictions. The responsibility to outline a consistent national Fourth Amendment doctrine at the border that protects privacy falls on the courts. Because of confusion among the circuit courts of appeals regarding when a forensic electronic device search is reasonable, a traveler has different constitutional rights if they arrive at the Los Angeles International Airport in California or Miami International Airport in Florida.
Section II explains how courts have interpreted the border exception to provide more leeway for searches and seizures by government agents despite a lack of articulable, individualized suspicion because of the great governmental interest in protecting the border. Section III explains the doctrinal hooks of use restrictions and how they have been applied across courts, particularly in the context of Fourth Amendment exceptions, which are intended to be applied in narrow circumstances. Section IV details two circuit splits in border exception doctrine with respect to forensic electronic device searches. The First and Fourth Circuits disagree with the Ninth and Eleventh Circuits over whether the underlying purpose of the border exception is limited to only the historic purpose of preventing contraband or has expanded to include searches for evidence of contraband. The Fourth and Ninth Circuits diverged with the Eleventh Circuit on the level of suspicion required to reasonably perform a forensic electronic device search following Riley v. California, which requires a warrant for police to lawfully conduct forensic electronic searches.11
573 U.S. 373, 402 (2014) (holding that the exigent circumstances exception to warrant requirement does not extend to forensic electronic searches).
This Comment argues that the Fourth Amendment establishes more heightened protections for travelers’ data than have been recognized in much of the border search case law. Courts should treat the extraction, retention, and querying or sharing of stored electronic device data as separate searches. This practice would simultaneously reconcile the divergence in circuits’ border search exception doctrine, protect travelers’ privacy, and still provide border agents necessary tools to protect national security interests at the border.
A. Fourth Amendment Doctrine Protects Against Unreasonable Searches by Weighing the Intrusion on an Individual’s Privacy Against the Government’s Interest
TOPAs the Supreme Court has counseled, “[t]he Fourth Amendment commands that searches and seizures be reasonable. What is reasonable depends upon all the circumstances surrounding the search or seizure and the nature of the search or seizure itself.”12
United States v. Montoya de Hernandez, 473 U.S. 531, 537 (1985).
United States v. Villamonte-Marquez, 462 U.S. 579, 588 (1983).
The Court requires an officer to articulate differing levels of suspicion to establish sufficient government interest to perform a reasonable Fourth Amendment search. External circumstances, like officer safety or the possible destruction of evidence, can increase the governmental interest, and thus decrease the level of suspicion needed for a search to be reasonable.14
See, e.g., Arizona v. Gant, 556 U.S. 332, 346–47 (2009) (discussing when officers may not require a warrant to conduct a reasonable search “when safety or evidentiary concerns demand”).
Katz v. United States, 389 U.S. 347, 357 (1967).
Probable cause can be established by demonstrating “a fair probability that contraband or evidence of a crime will be found.”16
Illinois v. Gates, 462 U.S. 213, 238 (1983).
Kansas v. Glover, 589 U.S. 376, 380 (2020).
Ornelas v. United States, 517 U.S. 690, 695 (1996).
Id. at 696.
E.g., United States v. Sokolow, 490 U.S. 1, 7–8 (1989) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)).
Terry v. Ohio, 392 U.S. 1, 30 (1968).
One exception to the Fourth Amendment’s general requirement that government officials must demonstrate probable cause and obtain a warrant before searching an individual exists in the border search context. The level of suspicion required for a search at the border is substantially lower than probable cause, though it differs for routine or nonroutine searches. First, to perform a routine search government agents need not establish any individualized suspicion. Indeed, they may even choose to search individuals at random. Alternatively, nonroutine searches, which may be highly intrusive, require only that an officer hold a reasonable suspicion of lawbreaking activity. Although the border exception establishes a lower level of suspicion than other exceptions for routine searches, non-routine searches may only be conducted with reasonable suspicion.
In a series of cases, the Warren Court shifted Fourth Amendment doctrine from one intended to protect citizens’ property rights to one intended to defend expectations of privacy.22
See Katz v. United States, 389 U.S. 347, 352 (1967) (protecting privacy to talk from a public phone booth); Mancusi v. DeFort, 392 U.S. 364, 369 (1968) (protecting privacy to store records in areas available to employers); Minnesota v. Olson, 495 U.S. 91, 100 (1990) (protecting privacy to stay overnight in a friend’s apartment, holding that “[w]e need go no further than to conclude, as we do, that Olson’s status as an overnight guest is alone enough to show that he had an expectation of privacy in the home”).
See Katz, 389 U.S. 347, 359 (1967) (Harlan, J. concurring); William J. Stuntz, Privacy’s Problem and the Law of Criminal Procedure, 93 Mich. L. Rev. 1016, 1017 (1995) (discussing effects of adopting privacy as the focus of Fourth Amendment law); Harold Krent, Of Diaries and Data Banks: Use Restrictions Under the Fourth Amendment, 74 Tex. L. Rev. 49, 54–60 (1995).
See Krent, supra note 23, at 54.
See United States v. Montoya de Hernandez, 473 U.S. 531, 540 (1985).
The Supreme Court acknowledges that Congress delegated the executive “plenary authority to conduct routine searches and seizures at the border, without probable cause or a warrant.”26
Id. at 537.
United States v. Ramsey, 431 U.S. 606, 616 (1977).
Id. (citing Tariff Act of 1789, 1 Stat. 24).
See id. at 617 (quoting Boyd v. United States, 116 U.S. 616, 623 (1886) (“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.”).
United States v. Thirty-Seven Photographs, 402 U.S. 363, 376 (1971).
Although courts leverage different rationales to justify the border exception,31
For example, Ramsey points to historical underpinnings, see 431 U.S. at 616-18, while Montoya de Hernandez notes the U.S. government’s high interest in preventing anything harmful from entering such as “communicable diseases, narcotics, or explosives.” 473 U.S. 531, 544 (1985).
See United States v. Flores-Montano, 541 U.S. 149, 152, 154 (2004).
Montoya de Hernandez, 473 U.S. at 540.
Ramsey, 431 U.S. at 619.
See, e.g., United States v. Boumelhem, 339 F.3d 414, 422–23 (6th Cir. 2003); United States v. Odutayo, 406 F.3d 386, 391–92 (5th Cir. 2005); United States v. Oriakhi, 57 F.3d 1290, 1296–97 (4th Cir. 1995); United States v. Ezeiruaku, 936 F.2d 136, 143 (3d Cir. 1991); United States v. Cardona, 769 F.2d 625, 629 (9th Cir. 1985); United States v. Udofot, 711 F.2d 831, 839–40 (8th Cir. 1983).
The law places two modest but important limits to the border exception. First, nonroutine searches require reasonable suspicion. In other words, searches that are highly intrusive to individual privacy may not be conducted unless border agents ascertain reasonable suspicion of violation of a border crime. Second, the search itself must be restricted to items within the purpose of the exception that establishes the government’s interest, or the search must relate to protecting the border.36
United States v. Kolsuz, 890 F.3d 133, 143 (4th Cir. 2018) (“[T]he scope of a warrant exception should be defined by its justifications.”).
1. Routine versus nonroutine searches
Routine searches of a person and their effects are “not subject to any requirement of reasonable suspicion, probable, cause or warrant.”37
Flores-Montano, 541 U.S. at 153 (citing Montoya de Hernandez, 473 U.S. at 538).
See United States v. Cano, 934 F.3d 1002, 1012 (9th Cir. 2019); Kolsuz, 890 F.3d at 139; United States v. Touset, 890 F.3d 1227, 1234 (11th Cir. 2018); Montoya de Hernandez, 473 U.S. at 541.
A search becomes nonroutine when it goes “beyond the scope of a routine customs search and inspection”39
Montoya de Hernandez, 473 U.S. at 541.
Flores-Montano, 541 U.S. at 152.
Montoya de Hernandez, 473 U.S. at 541 n.4.
Riley v. California, 573 U.S. 373, 394 (2014).
2. Border searches must further a purpose of the border exception
The purpose of a Fourth Amendment exception “define[s] the boundaries of the exception.”43
Arizona v. Gant, 556 U.S. 332, 339 (2009); see also Terry v. Ohio, 392 U.S. 1, 19 (1968) (quoting Warden v. Hayden, 387 U.S. 294, 310 (1967) (“The scope of the search must be ‘strictly tied to and justified by’ the circumstances which rendered its initiation permissible.”).
In Arizona v. Gant, the Supreme Court used this principle to decline to extend the search incident to arrest exception.44
556 U.S. 332 (2009).
Id. at 339.
Id. at 351.
Riley also litigated a violation of the search incident to arrest exception. The Supreme Court reiterated the exception’s dual purposes of preventing “harm to officers and destruction of evidence,” from prior precedents.47
Riley, 573 U.S. at 386.
Id.
Id.
In the border context, a search at the border for “general law enforcement purposes” might still be reasonable considering reduced expectations at the border, but the analysis depends on the factual circumstances. For example, in United States v. Soto-Soto,50
598 F.2d 545, 549 (9th Cir. 1979).
Id.
Id.
Id. at 550.
3. Circuits are divided in reading the purpose of the border exception
The Supreme Court established two principal purposes for the border exception: (1) to identify “[t]ravelers . . . entitled to come in” and (2) to verify their “belongings as effects which may be lawfully brought in.”54
Carroll v. United States, 267 U.S. 132, 154 (1925); see also Laura K. Donohue, Customs, Immigration, and Rights: Constitutional Limits on Electronic Border Searches, 128 Yale L.J.F. 961 (2019); United States v. Ramsey, 431 U.S. 606, 620 (1977) (“The border search exception is grounded in the right of the sovereign to control who and what may enter the country.”); United States v. Cotterman, 709 F.3d 952, 960 (9th Cir. 2013) (noting that border searches are generally deemed reasonable when they occur at the border because the “Government’s interest in preventing the entry of unwanted persons and effects is at its zenith at the international border”) (citing United States v. Flores-Montano, 541 U.S. 149, 152 (2004)).
The Ninth Circuit adopts the narrowest version of the border exception’s purpose: only border enforcement agents may invoke the exception, and they may only do so to stop contraband from entering the United States.55
See United States v. Cano, 934 F.3d 1002, 1013 (9th Cir. 2019).
Id. at 1016–17.
Id. at 1017 (holding the border exception may not be used to “conduct a search for evidence that [the suspect] was involved in sex-crimes generally” nor to “search for evidence of past or future border-related crimes”).
See id.
See id. at 1018.
Even under this view, general law enforcement searches could be conducted at the border, but only if the government can establish a sufficient interest to outweigh individual privacy interests under the Fourth Amendment balancing test for interior searches. In other words, the Ninth Circuit prohibits general law enforcement searches at the border from leveraging the lower suspicion requirements of border searches.60
Other circuits have misplaced concerns that the Ninth Circuit law would prevent border agents from any search related to crimes outside the border exception’s purpose. See United States v. Haitao Xiang, 67 F.4th 895, 900 (8th Cir. 2023).
Some critique this expressed purpose as too narrow. One recently published comment argues that the border exception should also exempt the probable cause and warrant requirement for transnational criminal investigations in addition to the longstanding, historic purpose of preventing contraband.61
See Brenna Ferris, Border Searches for Investigatory Purposes: Implementing a Border Nexus Standard, 54 U. Mich. J. L. Reform Caveat 1, 3, 16–17, 20 (2020).
Ferris, supra note 61, at 19–20 (citing United States v. Aigbekaen, 943 F.3d 713, 721 (4th Cir. 2019)).
Aigbekaen, 943 F.3d at 720.
The most extreme courts believe the border exception has no purpose-based limitation. The First Circuit in Alasaad v. Mayorkas acknowledged that searches using other Fourth Amendment exceptions must be limited in scope by their purpose, but refused to entertain the possibility that it also applied to the border exception.64
988 F.3d 8, 19 (1st Cir. 2021).
Id. at 21.
Despite disagreement on the underlying purpose of the border exception, all circuits agree that not all searches are reasonable just because they occur at the border. The border exception does not justify general law enforcement searches.66
See Aigbekaen, 943 F.3d at 721 (quoting United States v. Kolsuz, 890 F.3d 133, 143 (4th Cir. 2018)); United States v. Cano, 934 F.3d 1002, 1013 (9th Cir. 2019).
Aigbekaen, 943 F.3d at 720 (quoting United States v. Flores-Montano, 541 U.S. 149, 152, 154 (2004)).
Even assuming the border exception has a narrow purpose, it still has broad reach. It may be applied even if the search is “conducted at some physical or temporal remove”68
Kolsuz, 890 F.3d at 142.
2018 CBP Directive re Border Search of Electronic Devices, supra note 9.
No statutes grant travelers additional rights against CBP border searches.70
See e.g., 8 U.S.C. § 1357(a) (limiting the power of immigration officers and employees to enter dwellings within twenty-five feet of the national border, without establishing similar limitations for travelers); Hillel R. Smith, Cong. Rsch. Serv., LSB10387, Do Warrantless Searches of Electronic Devices at the Border Violate the Fourth Amendment? 6 (2021) (discussing two failed bills proposed in the 116th Congress which would have raised suspicion levels required to conduct manual and forensic electronic device searches and introduced a warrant requirement to access the digital content of an electronic device belonging to a U.S. citizen or lawful permanent resident).
See 6 U.S.C. §§ 202, 211; 8 U.S.C. §§ 1225, 1357; 19 U.S.C. §§ 482, 507, 1461, 1496, 1581, 1582, 1589a, 1595a(d); 31 U.S.C. § 5317; 22 U.S.C. § 401.
Administrative agencies like CBP “possess only the authority Congress has provided” by statute.72
Nat’l Fed’n of Indep. Bus v. DOL, OSHA, 595 U.S. 109, 117 (2022).
See 2018 CBP Directive re Border Search of Electronic Devices, supra note 9.
The U.S. government has litigated on behalf of CBP agents in several circuits, advocating for considering forensic electronic device searches as routine searches. Because of this, CBP appears to side with constitutional interpretations that broaden the border exception’s purpose and considers forensic electronic device searches as routine, since they consider electronic devices and the data as merely among “all types of personal property.”74
Id.
1. CBP’s electronic device border search policy
The Court recognizes the importance of self-imposed administrative checks in assessing the reasonableness of a search for Fourth Amendment purposes.75
See United States v. Flores-Montano, 541 U.S. 149, 156 (2004) (Breyer, J. concurring) (“This administrative process should help minimize concerns that gas tank searches might be undertaken in an abusive manner.”); Brittany Adams, Striking a Balance: Privacy and National Security in Section 702 U.S. Person Queries, 94 Wash L. Rev. 401, 405 (2019).
See 2018 CBP Directive re Border Search of Electronic Devices, supra note 9.
Under CBP’s own directives, an officer may only extract data from an electronic device, i.e. “connect[] external equipment . . . to review, copy, and/or analyze its contents,” if they have “reasonable suspicion of activity in violation of the laws enforced or administered by CBP, or in which there is a national security concern.”77
Id. at 5.1.4.
See id.
Id. at 5.5.1.1.
Id. at 5.5.1.2.; U.S. Customs and Border Patrol, Border Search of Electronic Devices Tear Sheet CBP Publication No. 3160-0423 (Apr. 2023) [hereinafter Tear Sheet].
All extractions and retentions must be documented and reported. However, once an item meets the above criteria, no limitations are imposed to the extent of data copied or stored.81
2018 CBP Directive re Border Search of Electronic Devices, supra note 9.
Id. at 5.5.1.3.
Id. passim.
2. CBP’s practical application of the border search exception
CBP’s internal policies empower agents to search through collected data from travelers to the maximum extent permitted by the Constitution. CBP currently collects, without a warrant, deeply personal data that is then “saved and searchable for 15 years by thousands of Department of Homeland Security (DHS) employees, with minimal protections against abuse.”84
Letter from Sen. Ron Wyden to Chris Magnus, Comm’r, U.S. Customs and Border Protection, at 1 (Sep. 15, 2022).
Id.; see also Glenn S. Gerstell, How FBI Querying Under FISA Section 702 Works, Lawfare (July 10, 2023 8:00 AM) https://www.lawfaremedia.org/article/how-fbi-querying-under-fisa-section-702-works[https://perma.cc/YA3Q-X62W](“As a result of the FISA Amendments Reauthorization Act of 2017, the FBI must obtain a specific order from the Foreign Intelligence Surveillance Court (FISC) before looking at the contents of communications in the 702 database where (a) the FBI used a search term pertaining to an American, (b) the FBI was searching for evidence of a domestic crime, but not foreign intelligence information, and (c) the search was for a predicated investigation for a domestic crime, not a national security matter. In simple terms, where the FBI is in effect investigating a particular American in a domestic criminal case, there should be extra protections, such as a court order, before the FBI may access the content of communications in the Section 702 database.”).
CBP argues that the practices fall within the guidelines set by “statutory and regulatory authorities, as well as applicable judicial precedent.”86
CBP Letter, supra note 5.
Id. at 2.
See Tear Sheet, supra note 80.
CBO Search Authority, U.S. Customs and Border Patrol, (June 30, 2023) [https://perma.cc/VP9Y-7CQ4].
In Alasaad, the First Circuit upheld the CBP directive that guides forensic electronic searches regarding the suspicion requirement for extraction, as well as ICE’s almost identical directive. The First Circuit did so by expanding the purpose of the border exception beyond “interdicting contraband,” interpreting digital information to be in the same category as “communicable diseases, narcotics, or explosives.”90
Alasaad v. Mayorkas, 988 F.3d 8, 20 (1st Cir. 2021).
See id. at 19.
CBP relies on Flores-Montano92
United States v. Flores-Montano, 541 U.S. 149 (2004).
See 2018 CBP Directive re Border Search of Electronic Devices, supra note 9.
Flores-Montano, 541 U.S. at 151–153 (quoting United States v. Ramsey, 431 U.S. 606, 616 (1977) (“[S]earches 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 they occur at the border.”)).
See 2018 CBP Directive re Border Search of Electronic Devices, supra note 9 (“[L]ongstanding federal court precedent recognizing the constitutional authority of the U.S. government to conduct border searches . . . authorize[s] CBP to inspect and examine . . . all types of personal property, including electronic devices.”).
CBP regulations allow officers to seize and manually search any cell phone data stored locally on an electronic device that crosses the border without suspicion.96
See 2018 CBP Directive re Border Search of Electronic Devices, supra note 9.
Id. at 5.4.1.
Another internal check occurs at the copying stage. CBP will only retain copies of information obtained “(1) if there is probable cause to believe the information contains evidence of a violation of law that CBP is authorized to enforce or administer, or (2) if the information relates to immigration, customs, or other enforcement matters.”98
CBP Letter, supra note 5.
Textually, the second requirement encompasses the first and is much broader than the specific scope of the border search exception. Although CBP is currently reassessing how long it will retain data, as of now, the agency retains copied data for fifteen years.99
Id. at 2.
Id.
CBP implements nominal administrative checks for querying the data it collects. To have access to the database, “users must undergo annual security and data privacy training and obtain approval from CBP management and the [Automated Targeting System (ATS)] system owner before gaining access to ATS for official purposes.”101
Id. at 3.
Id.
Id.
CBP shares this information broadly. In other contexts, such as the Interagency Border Inspection System, CBP officers share information with twenty other federal agencies or bureaus, including the Internal Revenue Service, Secret Service, and Federal Bureau of Investigation, to determine how to target individuals for secondary examination upon arrival in the U.S.104
See CBO Search Authority, U.S. Customs and Border Patrol (June 30, 2023) [https://perma.cc/VP9Y-7CQ4].
Tear Sheet, supra note 80.
The evolution of technology brings a new idea to the forefront: “what the government does with the information may now threaten privacy more than the collection itself.”106
See Krent, supra note 23, at 52.
See id. at 52–53.
Still, objective “Founding-era understandings” of expectations of privacy inform courts “when applying the Fourth Amendment to innovations in surveillance tools.”108
Carpenter v. United States, 585 U.S. 296, 305 (2018).
Note, Digital Duplications and the Fourth Amendment, 129 Harv. L. Rev. 1046, 1049 (2016).
See id.
Use restrictions are broadly defined as legal restrictions “constraining what law enforcement officials do with information already in their possession.”111
Ric Simmons, The Mirage of Use Restrictions, 96 N.C. L. Rev. 133, 137 (2017).
See Krent, supra note 23, at 50.
See id. at 86–87.
Id. at 64.
See Simmons, supra note 111, at 143.
See e.g., Nat’l Treasury Emps. Union v. Von Raab, 489 U.S. 656, 665 (1989) (emphasizing interest balancing and the program’s underlying purpose when analyzing special governmental need searches).
For example, in National Treasury Employees Union v. Von Raab,117
489 U.S. 656 (1989).
See id. at 667–68.
While the Supreme Court has not formally adopted use restrictions, they are permissible under current doctrine.119
Both the Supreme Court and several appellate courts have implicitly separated uses of data when analyzing Fourth Amendment searches. In Lindell v. United States, the Eight Circuit separated the retention of data, finding that “absent sufficient justification, the government has no right to hold onto property that is not contraband indefinitely,” even if lawfully seized. 82 F.4th 614, 621 (8th Cir. 2023) (citing United States v. Premises Known as 608 Taylor Ave., Apartment 302, Pittsburgh, Pa., 584 F.2d 1297, 1302 (3d Cir. 1978)). In Carpenter v. United States, the Court found that government use of public data was a search. 585 U.S. 296, 316 (2018). In United States v. Jones, the Court held that GPS data could not be used “indefinitely for evidentiary searches.” 565 U.S. 400, 404 (2012); Id. at 413 (Sotomayor, J. concurring). In Skinner v. Railway Labor Executives’ Ass’n, the Court found that further analysis of lawfully acquired samples constituted a separate search. 489 U.S. 602, 616-17 (1989) (“The ensuing chemical analysis of the sample to obtain physiological data is a further invasion of the tested employee’s privacy interests. . . . It is not disputed . . . that chemical analysis of urine, like that of blood, can reveal a host of private medical facts about an employee, including whether he or she is epileptic, pregnant, or diabetic.”). And most notably in Riley v. California, the court held that forensic cell phone searches were separate from other related seizures and thus subjected to a higher standard of review. Riley v. California, 573 U.S. 373, 386 (2014).
569 U.S. 435, 464–65 (2013).
Simmons, supra note 111, at 180; see, e.g., United States v. Ganias, 755 F.3d 125, 137 (2d Cir. 2014) (restricting the use of digital data once it was in the possession of law enforcement).
Use restrictions can take different forms. Krent advocated categorical bans on any data usage not disclosed before the original collection.122
See Krent, supra note 23, at 53.
Jim Harper, Administering the Fourth Amendment in a Digital Age, Nat’l Const. Ctr., https://constitutioncenter.org/news-debate/special-projects/digital-privacy/the-fourth-amendment-in-the-digital-age[https://perma.cc/PLW7-GKTJ](citing South Dakota v. Opperman, 428 U.S. 364, 376 (1976)).
See Krent, supra note 23, at 51.
In the border exception context, separate seizures should apply at the extraction, retention, and use (which could involve querying or sharing) stages. At each stage, a separate balancing test should be applied. Information acquired under the border exception for the purpose of preventing its entry at the border cannot then be used for general law enforcement purposes except upon probable cause and a warrant.
The First, Fourth, Ninth, and Eleventh Circuits disagree on how to determine when forensic electronic device searches fall into the border exception doctrine. All agree that a border search has never required more than reasonable suspicion.125
United States v. Wanjiku, 919 F.3d 472, 485 (7th Cir. 2019) (“[N]o circuit court, before or after Riley, has required more than reasonable suspicion for a border search of cell phones or electronically-stored data.”); United States v. Touset, 890 F.3d 1227, 1234 (11th Cir. 2018) (“Riley, which involved the search incident to arrest exception, does not apply to searches at the border.”); United States v. Molina-Isidoro, 884 F.3d 287, 291 (5th Cir. 2018) (“For border searches both routine and not, no case has required a warrant.”); id. at 293 (“The bottom line is that only two of the many federal cases addressing border searches of electronic devices have ever required any level of suspicion. They both required only reasonable suspicion and that was for the more intrusive forensic search.”); see also United States v. Kolsuz, 890 F.3d 133, 137 (4th Cir. 2018) (concluding that a “forensic examination of Kolsuz’s phone must be considered a nonroutine border search, requiring some measure of individualized suspicion” but declining to decide whether the standard should be reasonable suspicion or probable cause).
See United States v. Cano, 934 F.3d 1002, 1007 (9th Cir. 2019); Kolsuz, 890 F.3d at 137. But see Touset, 890 F.3d at 1233.
In each border exception case, to determine if evidence should be excluded, a court must assess both (1) if the search is within the scope of the exception to discover contraband or to determine who is entering at the border and (2) whether the search was conducted with sufficient suspicion.127
See Cano, 934 F.3d at 1012; see also Ferris, supra, note 49 at 9.
The circuit cases applying this test have addressed different crimes. In the Ninth Circuit, Cano hid cocaine in the tires of his truck.128
See Cano, 934 F.3d at 1008.
See Touset, 890 F.3d at 1230.
See Kolsuz, 890 F.3d at 138.
Courts read the scope of the border exception to reach beyond ordinary border crossings. Border searches may be conducted at a “temporal and spatial distance” from the attempted entry.131
Id. at 137.
See, e.g., Cano, 934 F.3d at 1014 (“[Cell phone] data can contain digital contraband.”).
Courts disagree as to whether the border exception applies when agents search for evidence of contraband as opposed to contraband itself. While the Ninth Circuit found the border exception must be directed toward discovering contraband,133
See id. at 1017.
Kolsuz, 890 F.3d at 138.
Alasaad v. Mayorkas, 988 F.3d 8, 21 (1st Cir. 2021).
Cano, 934 F.3d at 1018 (quoting Boyd v. United States, 116 U.S. 616, 622–23 (1886)).
Id.
The Fourth and First Circuits take the broadest view of the scope of border searches with respect to forensic electronic device searches. These circuits hold that the border exception encompasses searches conducted when persons seek to “depart the country,” when a phone is in “government custody miles from the border,” and even when there is a “month-long gap between” a person’s border crossing and the search.138
Kolsuz, 890 F.3d at 142; see also, United States v. Cotterman, 709 F.3d 952, 961–62 (9th Cir. 2013) (en banc) (applying border exception to forensic examination of laptop computer conducted miles from and days after attempted border crossing); United States v. Saboonchi, 990 F.Supp.2d 536, 548–49, 561 (S.D. Md. 2014) (applying border exception to forensic search of cell phones obtained at border with Canada but conducted several hundred miles away in Baltimore, Maryland).
Kolsuz, 890 F.3d at 143.
Id. at 143 (citing United States v. Molina-Isidoro, 884 F.3d 287, 295–97 (Costa, J., concurring) (questioning whether search for evidence as opposed to contraband is consistent with justifications for border search exception)).
In fact, the Fourth Circuit subsequently limited Kolsuz’s holding. In Aigbekaen, the Court held that border searches would not encompass all “general interest[s] in enforcing domestic criminal laws.”141
943 F.3d 713, 718 (4th Cir. 2019).
Alasaad v. Mayorkas, 988 F.3d 8, 21 (1st Cir. 2021) (“Advanced border searches of electronic devices may be used to search for contraband, evidence of contraband, or for evidence of activity in violation of the laws enforced or administered by CBP or ICE.”).
That CBP limits forensic searches to locally-stored data on the device undermines an interpretation of the border exception to encompass searches for mere evidence of contraband. If the border exception extends to other locations and times outside border crossings, it may reach data stored on the cloud as well, especially since data on the cloud would provide more evidence.143
See Nicolette Lotrionte, The Sky’s the Limit: The Border Search Doctrine and Cloud Computing, 78 Brook. L. Rev. 663, 668 (2013).
See Molina-Isidoro, 884 F.3d at 297 n.7 (5th Cir. 2018) (Costa, J., specially concurring) (“Hayden is viewed as a broad rejection of the ‘mere evidence’/instrumentality distinction”) (citing Wayne LaFave, Search & Seizure, A Treatise on the Fourth Amendment § 4.1(c)). But see Lotrionte, supra note 143 (“[T]here are reasons to believe the [mere evidence/instrumentality] distinction still matters when it comes to border searches.”).
The Eleventh Circuit is less direct in setting forward a clear rule of what falls within the border exception’s scope. In Touset, the court justifies using the border exception by highlighting the First Congress’ statute that allowed the search of “any vessel or cargo suspected of illegally entering the nation.”145
United States v. Touset, 890 F.3d 1227, 1232 (11th Cir. 2018). The opinion also cites Boyd to show the First Congress did not regard searches and seizures of contraband as unreasonable. Id.
Id. at 1233.
Circuits also disagree as to whether forensic electronic device searches are nonroutine and thus require reasonable suspicion. All circuits agree that, despite the Riley Court holding that “a warrant is generally required before such a search” of electronic data, the border search exception has never required more than reasonable suspicion for forensic electronic device searches.147
Riley v. United States, 573 U.S. 373, 401 (2014); see also, e.g., Molina-Isidoro, 884 F.3d at 290 (“[T]he most demanding requirement a court has required for any type of border search is reasonable suspicion.”).
See Bingzi Hu, Esq., Border Search in the Digital Era: Refashioning the Routine vs. Nonroutine Distinction for Electronic Device Searches, 49 Am. J. Crim. L. 177, 198 (2022) (arguing digital devices are qualitatively different from routine searches upsetting the balance of personal privacy versus significant government interests at the border).
The Eleventh Circuit takes a hardline approach, advocating that no search of any personal property, including electronic devices or digital data, can ever rise to a nonroutine search.149
United States v. Touset, 890 F.3d 1227, 1229 (11th Cir. 2018); see also Nathan Alexander Sales, Run for the Border: Laptop Searches and the Fourth Amendment, 43 U. Rich. L. Rev. 1091, 1093 (2009) (“This article argues that suspicionless border searches of laptop computers generally are permissible under the Fourth Amendment, but it importantly was written before Riley.”).
See United States v. Cano, 934 F.3d 1002, 1015 (9th Cir. 2019).
United States v. Kolsuz, 890 F.3d 133, 144 (4th Cir. 2018).
See id. at 148; Cano, 934 F.3d at 1015.
Alasaad v. Mayorkas, 988 F.3d 8, 17 (1st Cir. 2021).
The Eleventh Circuit in Touset draws a firm line declaring “property and persons are different.”154
Touset, 890 F.3d at 1234.
Id. (citing United States v. Alfaro-Moncada, 607 F.3d 720, 729 (11th Cir. 2010)).
Id.
There are many reasons to be skeptical of Touset’s holding. First, while Riley applied a probable cause and warrant requirement for forensic cell phone searches, specifically in the searches incident to arrest exception, its description of a forensic cell phone search as highly intrusive applies to all Fourth Amendment exceptions.157
See Riley v. California, 573 U.S. 373, 395 (2014).
Touset, 890 F.3d at 1229.
United States v. Flores-Montano, 541 U.S. 149, 155–56 (2004).
Id. at 155.
Touset, 890 F.3d at 1235.
The Ninth and Fourth Circuits’ reasoning is more straightforward. Recognizing the highly intrusive nature of a forensic electronic device search, the Courts found such a search is nonroutine, and thus requires reasonable suspicion to be conducted.162
See United States v. Cano, 934 F.3d 1002, 1015 (9th Cir. 2019); United States v. Kolsuz, 890 F.3d 133, 144 (4th Cir. 2018).
C. Use Restrictions Could Resolve Circuit Splits Regarding the Purpose and Suspicion Requirement for Forensic Electronic Device Border Searches
TOPAlthough circuits are split on both the scope of and level of suspicion required for the border exception, analyzing the stages of forensic electronic device searches as separate searches may ameliorate discrepancies. In forensic cell phone searches, agents extract data through a downloading process, store the data for a period of time, then use the data, typically either by querying or sharing it. The cases above collapse these separate steps of a forensic cell phone search into one Fourth Amendment search. Instead, each step should be seen as a separate Fourth Amendment search with its own balancing test.
First, border agents can extract all data with no suspicion, regardless of whether it might fall under the scope of the border exception. This respects the Fourth and First Circuits’ holdings on the border exception’s broad purpose.
But, extracted data should only be queried if there is reasonable suspicion that such a query would return contraband. This would effectively respect Riley’s holding that forensic searches are highly intrusive and the Ninth and Fourth Circuits’ holding that a forensic electronic search is nonroutine. The data pulled from a query should only be stored if there is at least probable cause that it contains contraband. This properly honors the historically narrow purpose of the border exception limited to preventing contraband. Any querying, sharing, or otherwise using the stored data for evidence or other law enforcement purposes is outside the scope of the border exception and should undergo the traditional probable cause and warrant requirement.
Thus, the border exception provides few limits at the extraction stage, but as the dangers to an individual’s sense of privacy become graver through the storage and use of the data, the restrictions become more serious. Separating forensic electronic device searches into steps of extraction, storage, and use upholds all Circuits’ rationales.
The Fourth Amendment’s border exception should be interpreted such that forensic electronic device searches constitute at least three distinct searches, each requiring its own level of suspicion to establish reasonableness: (1) the extraction of data, (2) the retention of data, and (3) the querying and sharing of data. Such a scheme would ameliorate discrepancies between circuits, protect individual travelers’ privacy interests, and still provide CBP the necessary flexibility to protect the border from unwanted items. While courts have traditionally demanded only reasonable suspicion to justify invasive border searches, other precedents such as Riley should govern the scope and procedure of these searches as they diverge from the original scope of the border exception.
This section will explore how courts should balance governmental interests against individual privacy interests for forensic electronic searches at the border by applying use restrictions at the extraction, retention, and use stages. Part A argues that extracting data requires no reasonable suspicion so long as the search is narrowly confined to the purpose of the exception. However, CBP should only store extracted data upon confirmation or probable cause that contraband exists within it. Part B proposes that after data is extracted and retained, each additional use of that data constitutes a new search. Narrowly tailored queries for contraband require only reasonable suspicion, while queries for evidence or shares with other agencies requires a warrant upon probable cause. Finally, Part C shows that such a use-restriction regime for the border exception properly balances individual privacy with governmental interests, without compromising CBPs mission.
A. Extracting Data Requires No Suspicion Under the Border Exception While Storing Data Requires Probable Cause of Contraband
TOPThe first governmental use of an individual’s data in a forensic electronic device search is extracting it. This is the least intrusive stage because mere extraction does not imply that anyone ever sees it, reviews it, or even stores it. Should use restrictions be applied to border searches, the government should still possess the authority to extract any data stored on an electronic device that could potentially contain digital contraband without any level of suspicion. This standard would respect both the Touset Court, which held that no suspicion was required for forensic electronic searches, and the Ninth and Fourth Circuits, which require at reasonable suspicion.163
See Touset, 890 F.3d at 1236; Cano, 934 F.3d at 1017; Kolsuz, 890 F.3d at 140–41.
This broad standard—“potentially contain”—is based on the court allowing almost all searches of physical property that may contain contraband.164
See Flores-Montano, 541 U.S. at 154-55.
See Cano, 934 F.3d at 1014 (discussing digital contraband).
See Touset, 890 F.2d at 1235.
See Kolsuz, 890 F.3d at 141 (“Accordingly, we do not address whether and under what circumstances an extended confiscation of a traveler’s phone—quite apart from any search undertaken—might constitute an unreasonable seizure of property for Fourth Amendment purposes.”) (citing United States v. Saboonchi, 990 F.Supp.2d 536, 569 (S.D. Md. 2014) (noting that forensic searches of digital devices may “deprive individuals of their possessions for periods of days or weeks”)).
Following extraction, the government must decide what data to store. Storage of personal data is highly intrusive to an individual’s privacy. The data could be leaked, perused, or otherwise used without their knowledge. To establish a sufficient countervailing governmental interest, the government should only store actual digital contraband or data where probable cause of such contraband exists. This retained digital contraband, however, may be stored indefinitely subject to statutory regulations.168
See Lindell v. United States, 82 F.4th 614, 621 (8th Cir. 2023) (“[A]bsent sufficient justification, the government has no right to hold onto property that is not contraband indefinitely) (citing United States v. Premises Known as 608 Taylor Ave., Apartment 302, Pittsburgh, Pa., 584 F.2d 1297, 1302 (3d Cir. 1978)).
B. Uses of Extracted and Stored Data Should Require No Suspicion for Querying Known Contraband, Reasonable Suspicion for Searching for Potential Contraband, and a Warrant Upon Probable Cause for Any Other Purposes
TOPUnder a use-restriction regime, different levels of suspicion should apply before an agent uses data depending on their intention. Querying data for known, stored digital contraband requires no suspicion, because this is undoubtedly within the purpose of the border exception. Searches for contraband do not implicate personal privacy interests, because smugglers have no expectations of privacy for illegal contraband.169
See Illinois v. Caballes, 543 U.S. 405, 408 (2005) (“We have held that any interest in possessing contraband cannot be deemed legitimate, and thus, governmental conduct that only reveals the possession of contraband compromises no legitimate privacy interest.”) (cleaned up).
Querying data for evidence or to share data with other agencies should require a warrant upon probable cause because these are outside the scope of the border exception.170
See Kolsuz, 890 F.3d at 143 (“[W]here the government interests underlying a Fourth Amendment exception are not implicated by a certain type of search, and where the individual’s privacy interests outweigh any ancillary governmental interests, the government must obtain a warrant based on probable cause.”).
To avoid implicating Riley’s assertion that electronic searches are highly intrusive and “typically expose to the government far more than the most exhaustive search of a house,”171
Riley v. California, 573 U.S. 373, 396; see also id. at 394 (“The sum of an individual’s private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions.”).
See Kyllo v. United States, 533 U.S. 27, 40 (2001).
Harper, supra note 123 (“[I]t is part of human essence to have communications remain private.”); see also United States v. Jones, 565 U.S. 400, 416 (2012) (Alito, J., concurring) (noting that GPS monitoring makes “available at a relatively low cost such a substantial quantum of intimate information about any person whom the government, in its unfettered discretion, chooses to track”).
Just as extraction requiring no suspicion satisfies the Eleventh Circuit, applying a reasonable suspicion requirement at the querying phase satisfies both the Ninth and Fourth Circuits’ finding that forensic electronic searches are nonroutine. This is because a use-restriction regime merely shifts where the nonroutine search begins through the stages of a forensic electronic search. Requiring a warrant for data searches unrelated to the border exception’s purpose, allows full fidelity to Riley.
C. CBP Compliance with a Use-Restriction Regime Does Not Compromise National Security
TOPTo abide by the proposed use-restriction based Fourth Amendment border exception framework, CBP must make modest adjustments to its procedures to comply. The most obvious is that it must narrow the purposes for which an agent may extract or copy data. CBP already requires changing levels of suspicion for extracting, copying, retention, and using electronic device data. However, the standards they place on each step, fail to map to the proposed framework.
CBP currently employs a digital scraping tool to extract data from electronic devices.174
See United States v. Cano, 934 F.3d 1002, 1008 (9th Cir. 2019) (describing use of Cellebrite software); Kolsuz, 890 F.3d at 139 (“Cellebrite Physical Analyzer, which extracts data from electronic devices, and conducted an advanced logical file system extraction.”).
See Kolsuz, 890 F.3d at 143.
CBP searches the vast amounts of data for contraband before retention primarily through queries. Queries should be a narrowly tailored search for contraband both in their wording but also in the scope of the data searched. Since queries are logged, courts can easily assess their narrowness. If incriminating information outside of contraband is uncovered during the process, it can be admitted as evidence under the plain view exception.176
The “plain view doctrine” authorizes the seizure of illegal or evidentiary items visible to a police officer whose access to the object has some prior Fourth Amendment justification and who has probable cause to suspect that the item relates to criminal activity. See Horton v. California, 496 U.S. 128, 142 (1990).
Some courts have signaled a willingness to address the question of “what kinds of querying, subject to what limitations, under what procedures, are reasonable within the meaning of the Fourth Amendment” although have yet determine a test. See United States v. Hasbajrami, 945 F.3d 641, 672–73 (2d Cir. 2019).
Parties have successfully challenged query-searches in the past. In re DNI/AG 702(h) Certifications 2018178
941 F.3d 547, 559–560 (FISA Ct. Rev. 2019).
See id.
Redacted, 402 F. Supp. 3d 45, 83 (FISA 2018), aff’d in part, 941 F.3d 547 (FISA Ct. Rev. 2019).
From an administrative perspective, restricting separate uses of data as separate Fourth Amendment searches is more manageable for CBP. Agents would not need to explain any level of suspicion to extract data. Although agents would need to be trained to properly word narrow queries for contraband, once contraband is identified and stored it can be indefinitely retained. This eliminates the need to delete old or stale evidence and keeps personal data more secure from risk of hacking. Once an agent has identified and retained known digital contraband, it streamlines the administrative process for querying the database as no reasonable suspicion would be required to search for the retained contraband. Furthermore, since the contraband-data is secured, waiting for the process to get a warrant to share or search it for evidence poses low risk of losing evidence.
Congress, if it wishes, can extend CBP’s enforcement authority to search for evidence of contraband, but “the dangers of judicial standard-setting in an area as sensitive as border searches [are] . . . apparent.”181
United States v. Touset, 890 F.3d 1227, 1237 (11th Cir. 2018) (quoting United States v. Kolsuz, 890 F.3d 133, 151 (4th Cir. 2018).
See United States. v. Villamonte-Marquez, 462 U.S. 579, 588 (1983).
Redacted, 402 F. Supp at 83; see also 50 U.S.C. § 1801(h)(3) (dictating minimization procedures for electronic surveillance).
Some might argue that a use-restriction Fourth Amendment regime would hinder law enforcement’s ability to protect the border. This concern is misplaced. In fact, a use-restriction regime would enhance CBP’s ability to go after its chief targets, large-scale criminal cartels that smuggle drugs, weapons, and child pornography to the United States, by properly aligning incentives with the enforcement mechanisms.184
See e.g., CBP Announces Next Phase in Fight Targeting Criminals Funneling Fentanyl into America Communities, U.S. Customs and Border Protection (Apr. 10, 2024) (announcing that CBP “will lead an expanded, multi-agency effort to target the transnational criminals . . . [that] targets cartels” that engage in “kidnapping, as well as the smuggling of humans, dangerous drugs, and firearms”).
Large-scale criminal organizations are the travelers in the best position to avoid the risk related to carrying electronic devices with significant personal information. A smuggler who frequently goes in and out of the United States could simply carry two devices and have a collaborator pick him up and drop him off from the airport or border. Likewise, if the purpose is to deliberately transport large quantities of digital contraband, a smuggler has no need to physically transport the data when it could be disguised in the mail.
Meanwhile, allowing invasive forensic electronic device searches with no suspicion requirement would put ordinary travelers at great discomfort in an already laborious traveling process. An ordinary person would not wipe their electronic device data before traveling just to redownload their data once they arrive at their next destination. And if they did not wipe their device data, then they might be subject to having their electronic devices confiscated and shipped to extraction areas across the country.
If we consider two alternatives to a use-restriction regime to address these problems, it is evident that both are unsatisfactory. First, if the Court read a broad purpose to the border search exception’s scope to include evidence of contraband, it would incentivize avoidant behavior from cartels and chiefly intrude on the privacy of non-dangerous targets. The thrust of this proposal is that by giving CBP access to more data on an electronic device, they are more capable of discovering other smugglers in the network. It assumes a huge lack of sophistication among smuggler networks. They could easily change their behavior to store less data locally or not travel with electronics at all with minimal effect on their operations.
Furthermore, the travelers who would be most at risk are those less likely to be threats to national security. The border exception has been used to single out “[i]nnocent people from all walks of life . . . [including] lawyers and journalists.”185
Sophia Cope, Protecting Digital Data at the U.S. Border, Am. Const. Soc’y (Sep. 11, 2019), https://www.acslaw.org/issue_brief/briefs-landing/protecting-digital-data-at-the-u-s-border/#_ftn17[https://perma.cc/7T6F-JUVH](collecting examples); Tom Jones, et. al., Source: Leaked Documents Show the U.S. Government Tracking Journalists and Immigration Advocates Through a Secret Database, NBC7 San Diego (Mar. 6, 2019), https://www.nbcsandiego.com/news/local/source-leaked-documents-show-the-us-government-tracking-journalists-and-advocates-through-a-secret-database/3438/[https://perma.cc/V6F3-P4KG].
Second, the Court could increase the level of suspicion required to extract data in a forensic electronic device border search to probable cause. This might meaningfully reduce CBP’s practice of performing forensic electronic device searches. If the practice was sufficiently diminished, then cartels would feel less need to change their behavior in a way that would modestly diminish the efficiency of their smuggling. Then, when CBP has probable cause for a particular traveler, that traveler is more likely to have inculpating information on their device that will be useful to targeting other smugglers or collaborators.
However, there are several flaws this this solution. First, requiring probable cause for a border search might seriously gut CBPs ability to prevent dangerous contraband. It is unrealistic that border “law enforcement is expected to ascertain individualized suspicion” when thousands of travelers cross the U.S. border each day.186
Kolsuz, 890 F.3d at 150 (Wilkinson, J., concurring).
VI. Conclusion
TOPThe border exception to the Fourth Amendment is a gross intrusion into the privacy expectations of travelers. It is unfair that routine inspections that travelers have become accustomed to have snowballed into full on invasions of their personal lives through suspicionless forensic electronic device searches.
The circuit splits regarding the purpose of the border exception traverse the spectrum. However, applying use restrictions by separating different uses of data as separate searches ameliorates discrepancies between courts and more importantly protects the privacy of travelers. Adopting such an analysis for border search exception searches would also protect the precedent of Riley, without derailing border enforcers’ abilities to prevent contraband from entering and to prevent large-scale transnational crimes.
Applying such an analysis has strong doctrinal underpinnings in the border context. Because the searches are reasonable only within the scope of the exception’s purpose, it would not make sense for law enforcement to be able to use seized data for a different purpose without a separate reasonableness assessment. Although the Supreme Court has not formally approved use-restrictions, adopting them in this context aligns neatly with previous lower court applications and fits situations where the Supreme Court has signaled a willingness to adopt such restrictions.
Consequences of over-collection of data could be dire. With regular database hacking, dubious lack of oversight for regular CBP personnel, and historic misuse by database managers, travelers’ personal information like private photos, messages, and recordings are at risk of being released to the public. And while law enforcement retaining individuals’ information indefinitely is concerning enough, worse yet is the data being released to the world.
- 1See, e.g., United States v. Alfaro-Moncada, 607 F.3d 720, 732 (11th Cir. 2010).
- 2See, e.g., United States v. Flores-Montano, 541 U.S. 149, 155 (2004).
- 3See, e.g., United States v. Touset, 890 F.3d 1227, 1233 (11th Cir. 2018).
- 4See Alina Selyukh, NSA Staff Used Spy Tools on Spouses, Ex-lovers: Watchdog, Reuters (Sep. 27, 2013), https://www.reuters.com/article/idUSBRE98Q14H/ [https://perma.cc/P4PT-UXW8].Congress has since implemented statutory restrictions to limit this practice and other intrusions into U.S. person’s privacy. See Brittany Adams, Striking a Balance: Privacy and National Security in Section 702 U.S. Person Queries, 94 Wash. L. Rev. 401, 405 (2019).
- 5Letter from Troy Miller, Acting Comm’r of U.S. CBP to Sen. Ron Wyden, at 2 (Jan. 24, 2023) [hereinafter CBP Letter].
- 6See United States v. Cano, 934 F.3d 1002, 1008–09 (9th Cir. 2019) (distinguishing between a “manual search of a cell phone” where an agent browsed the call log and wrote down information stored on it versus a “forensic cell phone search” where the agent used a software to download all data stored locally on the phone).
- 7See, e.g., id. at 1008.
- 8See CBP Releases Updated Border Search of Electronic Device Directive and FY17 Statistics, U.S. Customs and Border Prot. (Jan. 5, 2018), https://www.cbp.gov/newsroom/national-media-release/cbp-releases-updated-border-search-electronic-device-directive-and [https://perma.cc/7R89-GMF4].
- 9Dept. of Homeland Sec., U.S. CBP Directive 3340-049A.2.3, Border Search of Electronic Devices 5 (2018) [hereinafter 2018 CBP Directive re Border Search of Electronic Devices].
- 10See CBP Enforcement Statistics, U.S. Customs and Border Prot. (Apr. 17, 2024), https://www.cbp.gov/newsroom/stats/cbp-enforcement-statistics[https://perma.cc/A7ZT-WF65].
- 11573 U.S. 373, 402 (2014) (holding that the exigent circumstances exception to warrant requirement does not extend to forensic electronic searches).
- 12United States v. Montoya de Hernandez, 473 U.S. 531, 537 (1985).
- 13United States v. Villamonte-Marquez, 462 U.S. 579, 588 (1983).
- 14See, e.g., Arizona v. Gant, 556 U.S. 332, 346–47 (2009) (discussing when officers may not require a warrant to conduct a reasonable search “when safety or evidentiary concerns demand”).
- 15Katz v. United States, 389 U.S. 347, 357 (1967).
- 16Illinois v. Gates, 462 U.S. 213, 238 (1983).
- 17Kansas v. Glover, 589 U.S. 376, 380 (2020).
- 18Ornelas v. United States, 517 U.S. 690, 695 (1996).
- 19Id. at 696.
- 20E.g., United States v. Sokolow, 490 U.S. 1, 7–8 (1989) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)).
- 21Terry v. Ohio, 392 U.S. 1, 30 (1968).
- 22See Katz v. United States, 389 U.S. 347, 352 (1967) (protecting privacy to talk from a public phone booth); Mancusi v. DeFort, 392 U.S. 364, 369 (1968) (protecting privacy to store records in areas available to employers); Minnesota v. Olson, 495 U.S. 91, 100 (1990) (protecting privacy to stay overnight in a friend’s apartment, holding that “[w]e need go no further than to conclude, as we do, that Olson’s status as an overnight guest is alone enough to show that he had an expectation of privacy in the home”).
- 23See Katz, 389 U.S. 347, 359 (1967) (Harlan, J. concurring); William J. Stuntz, Privacy’s Problem and the Law of Criminal Procedure, 93 Mich. L. Rev. 1016, 1017 (1995) (discussing effects of adopting privacy as the focus of Fourth Amendment law); Harold Krent, Of Diaries and Data Banks: Use Restrictions Under the Fourth Amendment, 74 Tex. L. Rev. 49, 54–60 (1995).
- 24See Krent, supra note 23, at 54.
- 25See United States v. Montoya de Hernandez, 473 U.S. 531, 540 (1985).
- 26Id. at 537.
- 27United States v. Ramsey, 431 U.S. 606, 616 (1977).
- 28Id. (citing Tariff Act of 1789, 1 Stat. 24).
- 29See id. at 617 (quoting Boyd v. United States, 116 U.S. 616, 623 (1886) (“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.”).
- 30United States v. Thirty-Seven Photographs, 402 U.S. 363, 376 (1971).
- 31For example, Ramsey points to historical underpinnings, see 431 U.S. at 616-18, while Montoya de Hernandez notes the U.S. government’s high interest in preventing anything harmful from entering such as “communicable diseases, narcotics, or explosives.” 473 U.S. 531, 544 (1985).
- 32See United States v. Flores-Montano, 541 U.S. 149, 152, 154 (2004).
- 33Montoya de Hernandez, 473 U.S. at 540.
- 34Ramsey, 431 U.S. at 619.
- 35See, e.g., United States v. Boumelhem, 339 F.3d 414, 422–23 (6th Cir. 2003); United States v. Odutayo, 406 F.3d 386, 391–92 (5th Cir. 2005); United States v. Oriakhi, 57 F.3d 1290, 1296–97 (4th Cir. 1995); United States v. Ezeiruaku, 936 F.2d 136, 143 (3d Cir. 1991); United States v. Cardona, 769 F.2d 625, 629 (9th Cir. 1985); United States v. Udofot, 711 F.2d 831, 839–40 (8th Cir. 1983).
- 36United States v. Kolsuz, 890 F.3d 133, 143 (4th Cir. 2018) (“[T]he scope of a warrant exception should be defined by its justifications.”).
- 37Flores-Montano, 541 U.S. at 153 (citing Montoya de Hernandez, 473 U.S. at 538).
- 38See United States v. Cano, 934 F.3d 1002, 1012 (9th Cir. 2019); Kolsuz, 890 F.3d at 139; United States v. Touset, 890 F.3d 1227, 1234 (11th Cir. 2018); Montoya de Hernandez, 473 U.S. at 541.
- 39Montoya de Hernandez, 473 U.S. at 541.
- 40Flores-Montano, 541 U.S. at 152.
- 41Montoya de Hernandez, 473 U.S. at 541 n.4.
- 42Riley v. California, 573 U.S. 373, 394 (2014).
- 43Arizona v. Gant, 556 U.S. 332, 339 (2009); see also Terry v. Ohio, 392 U.S. 1, 19 (1968) (quoting Warden v. Hayden, 387 U.S. 294, 310 (1967) (“The scope of the search must be ‘strictly tied to and justified by’ the circumstances which rendered its initiation permissible.”).
- 44556 U.S. 332 (2009).
- 45Id. at 339.
- 46Id. at 351.
- 47Riley, 573 U.S. at 386.
- 48Id.
- 49Id.
- 50598 F.2d 545, 549 (9th Cir. 1979).
- 51Id.
- 52Id.
- 53Id. at 550.
- 54Carroll v. United States, 267 U.S. 132, 154 (1925); see also Laura K. Donohue, Customs, Immigration, and Rights: Constitutional Limits on Electronic Border Searches, 128 Yale L.J.F. 961 (2019); United States v. Ramsey, 431 U.S. 606, 620 (1977) (“The border search exception is grounded in the right of the sovereign to control who and what may enter the country.”); United States v. Cotterman, 709 F.3d 952, 960 (9th Cir. 2013) (noting that border searches are generally deemed reasonable when they occur at the border because the “Government’s interest in preventing the entry of unwanted persons and effects is at its zenith at the international border”) (citing United States v. Flores-Montano, 541 U.S. 149, 152 (2004)).
- 55See United States v. Cano, 934 F.3d 1002, 1013 (9th Cir. 2019).
- 56Id. at 1016–17.
- 57Id. at 1017 (holding the border exception may not be used to “conduct a search for evidence that [the suspect] was involved in sex-crimes generally” nor to “search for evidence of past or future border-related crimes”).
- 58See id.
- 59See id. at 1018.
- 60Other circuits have misplaced concerns that the Ninth Circuit law would prevent border agents from any search related to crimes outside the border exception’s purpose. See United States v. Haitao Xiang, 67 F.4th 895, 900 (8th Cir. 2023).
- 61See Brenna Ferris, Border Searches for Investigatory Purposes: Implementing a Border Nexus Standard, 54 U. Mich. J. L. Reform Caveat 1, 3, 16–17, 20 (2020).
- 62Ferris, supra note 61, at 19–20 (citing United States v. Aigbekaen, 943 F.3d 713, 721 (4th Cir. 2019)).
- 63Aigbekaen, 943 F.3d at 720.
- 64988 F.3d 8, 19 (1st Cir. 2021).
- 65Id. at 21.
- 66See Aigbekaen, 943 F.3d at 721 (quoting United States v. Kolsuz, 890 F.3d 133, 143 (4th Cir. 2018)); United States v. Cano, 934 F.3d 1002, 1013 (9th Cir. 2019).
- 67Aigbekaen, 943 F.3d at 720 (quoting United States v. Flores-Montano, 541 U.S. 149, 152, 154 (2004)).
- 68Kolsuz, 890 F.3d at 142.
- 692018 CBP Directive re Border Search of Electronic Devices, supra note 9.
- 70See e.g., 8 U.S.C. § 1357(a) (limiting the power of immigration officers and employees to enter dwellings within twenty-five feet of the national border, without establishing similar limitations for travelers); Hillel R. Smith, Cong. Rsch. Serv., LSB10387, Do Warrantless Searches of Electronic Devices at the Border Violate the Fourth Amendment? 6 (2021) (discussing two failed bills proposed in the 116th Congress which would have raised suspicion levels required to conduct manual and forensic electronic device searches and introduced a warrant requirement to access the digital content of an electronic device belonging to a U.S. citizen or lawful permanent resident).
- 71See 6 U.S.C. §§ 202, 211; 8 U.S.C. §§ 1225, 1357; 19 U.S.C. §§ 482, 507, 1461, 1496, 1581, 1582, 1589a, 1595a(d); 31 U.S.C. § 5317; 22 U.S.C. § 401.
- 72Nat’l Fed’n of Indep. Bus v. DOL, OSHA, 595 U.S. 109, 117 (2022).
- 73See 2018 CBP Directive re Border Search of Electronic Devices, supra note 9.
- 74Id.
- 75See United States v. Flores-Montano, 541 U.S. 149, 156 (2004) (Breyer, J. concurring) (“This administrative process should help minimize concerns that gas tank searches might be undertaken in an abusive manner.”); Brittany Adams, Striking a Balance: Privacy and National Security in Section 702 U.S. Person Queries, 94 Wash L. Rev. 401, 405 (2019).
- 76See 2018 CBP Directive re Border Search of Electronic Devices, supra note 9.
- 77Id. at 5.1.4.
- 78See id.
- 79Id. at 5.5.1.1.
- 80Id. at 5.5.1.2.; U.S. Customs and Border Patrol, Border Search of Electronic Devices Tear Sheet CBP Publication No. 3160-0423 (Apr. 2023) [hereinafter Tear Sheet].
- 812018 CBP Directive re Border Search of Electronic Devices, supra note 9.
- 82Id. at 5.5.1.3.
- 83Id. passim.
- 84Letter from Sen. Ron Wyden to Chris Magnus, Comm’r, U.S. Customs and Border Protection, at 1 (Sep. 15, 2022).
- 85Id.; see also Glenn S. Gerstell, How FBI Querying Under FISA Section 702 Works, Lawfare (July 10, 2023 8:00 AM) https://www.lawfaremedia.org/article/how-fbi-querying-under-fisa-section-702-works[https://perma.cc/YA3Q-X62W](“As a result of the FISA Amendments Reauthorization Act of 2017, the FBI must obtain a specific order from the Foreign Intelligence Surveillance Court (FISC) before looking at the contents of communications in the 702 database where (a) the FBI used a search term pertaining to an American, (b) the FBI was searching for evidence of a domestic crime, but not foreign intelligence information, and (c) the search was for a predicated investigation for a domestic crime, not a national security matter. In simple terms, where the FBI is in effect investigating a particular American in a domestic criminal case, there should be extra protections, such as a court order, before the FBI may access the content of communications in the Section 702 database.”).
- 86CBP Letter, supra note 5.
- 87Id. at 2.
- 88See Tear Sheet, supra note 80.
- 89CBO Search Authority, U.S. Customs and Border Patrol, (June 30, 2023) [https://perma.cc/VP9Y-7CQ4].
- 90Alasaad v. Mayorkas, 988 F.3d 8, 20 (1st Cir. 2021).
- 91See id. at 19.
- 92United States v. Flores-Montano, 541 U.S. 149 (2004).
- 93See 2018 CBP Directive re Border Search of Electronic Devices, supra note 9.
- 94Flores-Montano, 541 U.S. at 151–153 (quoting United States v. Ramsey, 431 U.S. 606, 616 (1977) (“[S]earches 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 they occur at the border.”)).
- 95See 2018 CBP Directive re Border Search of Electronic Devices, supra note 9 (“[L]ongstanding federal court precedent recognizing the constitutional authority of the U.S. government to conduct border searches . . . authorize[s] CBP to inspect and examine . . . all types of personal property, including electronic devices.”).
- 96See 2018 CBP Directive re Border Search of Electronic Devices, supra note 9.
- 97Id. at 5.4.1.
- 98CBP Letter, supra note 5.
- 99Id. at 2.
- 100Id.
- 101Id. at 3.
- 102Id.
- 103Id.
- 104See CBO Search Authority, U.S. Customs and Border Patrol (June 30, 2023) [https://perma.cc/VP9Y-7CQ4].
- 105Tear Sheet, supra note 80.
- 106See Krent, supra note 23, at 52.
- 107See id. at 52–53.
- 108Carpenter v. United States, 585 U.S. 296, 305 (2018).
- 109Note, Digital Duplications and the Fourth Amendment, 129 Harv. L. Rev. 1046, 1049 (2016).
- 110See id.
- 111Ric Simmons, The Mirage of Use Restrictions, 96 N.C. L. Rev. 133, 137 (2017).
- 112See Krent, supra note 23, at 50.
- 113See id. at 86–87.
- 114Id. at 64.
- 115See Simmons, supra note 111, at 143.
- 116See e.g., Nat’l Treasury Emps. Union v. Von Raab, 489 U.S. 656, 665 (1989) (emphasizing interest balancing and the program’s underlying purpose when analyzing special governmental need searches).
- 117489 U.S. 656 (1989).
- 118See id. at 667–68.
- 119Both the Supreme Court and several appellate courts have implicitly separated uses of data when analyzing Fourth Amendment searches. In Lindell v. United States, the Eight Circuit separated the retention of data, finding that “absent sufficient justification, the government has no right to hold onto property that is not contraband indefinitely,” even if lawfully seized. 82 F.4th 614, 621 (8th Cir. 2023) (citing United States v. Premises Known as 608 Taylor Ave., Apartment 302, Pittsburgh, Pa., 584 F.2d 1297, 1302 (3d Cir. 1978)). In Carpenter v. United States, the Court found that government use of public data was a search. 585 U.S. 296, 316 (2018). In United States v. Jones, the Court held that GPS data could not be used “indefinitely for evidentiary searches.” 565 U.S. 400, 404 (2012); Id. at 413 (Sotomayor, J. concurring). In Skinner v. Railway Labor Executives’ Ass’n, the Court found that further analysis of lawfully acquired samples constituted a separate search. 489 U.S. 602, 616-17 (1989) (“The ensuing chemical analysis of the sample to obtain physiological data is a further invasion of the tested employee’s privacy interests. . . . It is not disputed . . . that chemical analysis of urine, like that of blood, can reveal a host of private medical facts about an employee, including whether he or she is epileptic, pregnant, or diabetic.”). And most notably in Riley v. California, the court held that forensic cell phone searches were separate from other related seizures and thus subjected to a higher standard of review. Riley v. California, 573 U.S. 373, 386 (2014).
- 120569 U.S. 435, 464–65 (2013).
- 121Simmons, supra note 111, at 180; see, e.g., United States v. Ganias, 755 F.3d 125, 137 (2d Cir. 2014) (restricting the use of digital data once it was in the possession of law enforcement).
- 122See Krent, supra note 23, at 53.
- 123Jim Harper, Administering the Fourth Amendment in a Digital Age, Nat’l Const. Ctr., https://constitutioncenter.org/news-debate/special-projects/digital-privacy/the-fourth-amendment-in-the-digital-age[https://perma.cc/PLW7-GKTJ](citing South Dakota v. Opperman, 428 U.S. 364, 376 (1976)).
- 124See Krent, supra note 23, at 51.
- 125United States v. Wanjiku, 919 F.3d 472, 485 (7th Cir. 2019) (“[N]o circuit court, before or after Riley, has required more than reasonable suspicion for a border search of cell phones or electronically-stored data.”); United States v. Touset, 890 F.3d 1227, 1234 (11th Cir. 2018) (“Riley, which involved the search incident to arrest exception, does not apply to searches at the border.”); United States v. Molina-Isidoro, 884 F.3d 287, 291 (5th Cir. 2018) (“For border searches both routine and not, no case has required a warrant.”); id. at 293 (“The bottom line is that only two of the many federal cases addressing border searches of electronic devices have ever required any level of suspicion. They both required only reasonable suspicion and that was for the more intrusive forensic search.”); see also United States v. Kolsuz, 890 F.3d 133, 137 (4th Cir. 2018) (concluding that a “forensic examination of Kolsuz’s phone must be considered a nonroutine border search, requiring some measure of individualized suspicion” but declining to decide whether the standard should be reasonable suspicion or probable cause).
- 126See United States v. Cano, 934 F.3d 1002, 1007 (9th Cir. 2019); Kolsuz, 890 F.3d at 137. But see Touset, 890 F.3d at 1233.
- 127See Cano, 934 F.3d at 1012; see also Ferris, supra, note 49 at 9.
- 128See Cano, 934 F.3d at 1008.
- 129See Touset, 890 F.3d at 1230.
- 130See Kolsuz, 890 F.3d at 138.
- 131Id. at 137.
- 132See, e.g., Cano, 934 F.3d at 1014 (“[Cell phone] data can contain digital contraband.”).
- 133See id. at 1017.
- 134Kolsuz, 890 F.3d at 138.
- 135Alasaad v. Mayorkas, 988 F.3d 8, 21 (1st Cir. 2021).
- 136Cano, 934 F.3d at 1018 (quoting Boyd v. United States, 116 U.S. 616, 622–23 (1886)).
- 137Id.
- 138Kolsuz, 890 F.3d at 142; see also, United States v. Cotterman, 709 F.3d 952, 961–62 (9th Cir. 2013) (en banc) (applying border exception to forensic examination of laptop computer conducted miles from and days after attempted border crossing); United States v. Saboonchi, 990 F.Supp.2d 536, 548–49, 561 (S.D. Md. 2014) (applying border exception to forensic search of cell phones obtained at border with Canada but conducted several hundred miles away in Baltimore, Maryland).
- 139Kolsuz, 890 F.3d at 143.
- 140Id. at 143 (citing United States v. Molina-Isidoro, 884 F.3d 287, 295–97 (Costa, J., concurring) (questioning whether search for evidence as opposed to contraband is consistent with justifications for border search exception)).
- 141943 F.3d 713, 718 (4th Cir. 2019).
- 142Alasaad v. Mayorkas, 988 F.3d 8, 21 (1st Cir. 2021) (“Advanced border searches of electronic devices may be used to search for contraband, evidence of contraband, or for evidence of activity in violation of the laws enforced or administered by CBP or ICE.”).
- 143See Nicolette Lotrionte, The Sky’s the Limit: The Border Search Doctrine and Cloud Computing, 78 Brook. L. Rev. 663, 668 (2013).
- 144See Molina-Isidoro, 884 F.3d at 297 n.7 (5th Cir. 2018) (Costa, J., specially concurring) (“Hayden is viewed as a broad rejection of the ‘mere evidence’/instrumentality distinction”) (citing Wayne LaFave, Search & Seizure, A Treatise on the Fourth Amendment § 4.1(c)). But see Lotrionte, supra note 143 (“[T]here are reasons to believe the [mere evidence/instrumentality] distinction still matters when it comes to border searches.”).
- 145United States v. Touset, 890 F.3d 1227, 1232 (11th Cir. 2018). The opinion also cites Boyd to show the First Congress did not regard searches and seizures of contraband as unreasonable. Id.
- 146Id. at 1233.
- 147Riley v. United States, 573 U.S. 373, 401 (2014); see also, e.g., Molina-Isidoro, 884 F.3d at 290 (“[T]he most demanding requirement a court has required for any type of border search is reasonable suspicion.”).
- 148See Bingzi Hu, Esq., Border Search in the Digital Era: Refashioning the Routine vs. Nonroutine Distinction for Electronic Device Searches, 49 Am. J. Crim. L. 177, 198 (2022) (arguing digital devices are qualitatively different from routine searches upsetting the balance of personal privacy versus significant government interests at the border).
- 149United States v. Touset, 890 F.3d 1227, 1229 (11th Cir. 2018); see also Nathan Alexander Sales, Run for the Border: Laptop Searches and the Fourth Amendment, 43 U. Rich. L. Rev. 1091, 1093 (2009) (“This article argues that suspicionless border searches of laptop computers generally are permissible under the Fourth Amendment, but it importantly was written before Riley.”).
- 150See United States v. Cano, 934 F.3d 1002, 1015 (9th Cir. 2019).
- 151United States v. Kolsuz, 890 F.3d 133, 144 (4th Cir. 2018).
- 152See id. at 148; Cano, 934 F.3d at 1015.
- 153Alasaad v. Mayorkas, 988 F.3d 8, 17 (1st Cir. 2021).
- 154Touset, 890 F.3d at 1234.
- 155Id. (citing United States v. Alfaro-Moncada, 607 F.3d 720, 729 (11th Cir. 2010)).
- 156Id.
- 157See Riley v. California, 573 U.S. 373, 395 (2014).
- 158Touset, 890 F.3d at 1229.
- 159United States v. Flores-Montano, 541 U.S. 149, 155–56 (2004).
- 160Id. at 155.
- 161Touset, 890 F.3d at 1235.
- 162See United States v. Cano, 934 F.3d 1002, 1015 (9th Cir. 2019); United States v. Kolsuz, 890 F.3d 133, 144 (4th Cir. 2018).
- 163See Touset, 890 F.3d at 1236; Cano, 934 F.3d at 1017; Kolsuz, 890 F.3d at 140–41.
- 164See Flores-Montano, 541 U.S. at 154-55.
- 165See Cano, 934 F.3d at 1014 (discussing digital contraband).
- 166See Touset, 890 F.2d at 1235.
- 167See Kolsuz, 890 F.3d at 141 (“Accordingly, we do not address whether and under what circumstances an extended confiscation of a traveler’s phone—quite apart from any search undertaken—might constitute an unreasonable seizure of property for Fourth Amendment purposes.”) (citing United States v. Saboonchi, 990 F.Supp.2d 536, 569 (S.D. Md. 2014) (noting that forensic searches of digital devices may “deprive individuals of their possessions for periods of days or weeks”)).
- 168See Lindell v. United States, 82 F.4th 614, 621 (8th Cir. 2023) (“[A]bsent sufficient justification, the government has no right to hold onto property that is not contraband indefinitely) (citing United States v. Premises Known as 608 Taylor Ave., Apartment 302, Pittsburgh, Pa., 584 F.2d 1297, 1302 (3d Cir. 1978)).
- 169See Illinois v. Caballes, 543 U.S. 405, 408 (2005) (“We have held that any interest in possessing contraband cannot be deemed legitimate, and thus, governmental conduct that only reveals the possession of contraband compromises no legitimate privacy interest.”) (cleaned up).
- 170See Kolsuz, 890 F.3d at 143 (“[W]here the government interests underlying a Fourth Amendment exception are not implicated by a certain type of search, and where the individual’s privacy interests outweigh any ancillary governmental interests, the government must obtain a warrant based on probable cause.”).
- 171Riley v. California, 573 U.S. 373, 396; see also id. at 394 (“The sum of an individual’s private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions.”).
- 172See Kyllo v. United States, 533 U.S. 27, 40 (2001).
- 173Harper, supra note 123 (“[I]t is part of human essence to have communications remain private.”); see also United States v. Jones, 565 U.S. 400, 416 (2012) (Alito, J., concurring) (noting that GPS monitoring makes “available at a relatively low cost such a substantial quantum of intimate information about any person whom the government, in its unfettered discretion, chooses to track”).
- 174See United States v. Cano, 934 F.3d 1002, 1008 (9th Cir. 2019) (describing use of Cellebrite software); Kolsuz, 890 F.3d at 139 (“Cellebrite Physical Analyzer, which extracts data from electronic devices, and conducted an advanced logical file system extraction.”).
- 175See Kolsuz, 890 F.3d at 143.
- 176The “plain view doctrine” authorizes the seizure of illegal or evidentiary items visible to a police officer whose access to the object has some prior Fourth Amendment justification and who has probable cause to suspect that the item relates to criminal activity. See Horton v. California, 496 U.S. 128, 142 (1990).
- 177Some courts have signaled a willingness to address the question of “what kinds of querying, subject to what limitations, under what procedures, are reasonable within the meaning of the Fourth Amendment” although have yet determine a test. See United States v. Hasbajrami, 945 F.3d 641, 672–73 (2d Cir. 2019).
- 178941 F.3d 547, 559–560 (FISA Ct. Rev. 2019).
- 179See id.
- 180Redacted, 402 F. Supp. 3d 45, 83 (FISA 2018), aff’d in part, 941 F.3d 547 (FISA Ct. Rev. 2019).
- 181United States v. Touset, 890 F.3d 1227, 1237 (11th Cir. 2018) (quoting United States v. Kolsuz, 890 F.3d 133, 151 (4th Cir. 2018).
- 182See United States. v. Villamonte-Marquez, 462 U.S. 579, 588 (1983).
- 183Redacted, 402 F. Supp at 83; see also 50 U.S.C. § 1801(h)(3) (dictating minimization procedures for electronic surveillance).
- 184See e.g., CBP Announces Next Phase in Fight Targeting Criminals Funneling Fentanyl into America Communities, U.S. Customs and Border Protection (Apr. 10, 2024) (announcing that CBP “will lead an expanded, multi-agency effort to target the transnational criminals . . . [that] targets cartels” that engage in “kidnapping, as well as the smuggling of humans, dangerous drugs, and firearms”).
- 185Sophia Cope, Protecting Digital Data at the U.S. Border, Am. Const. Soc’y (Sep. 11, 2019), https://www.acslaw.org/issue_brief/briefs-landing/protecting-digital-data-at-the-u-s-border/#_ftn17[https://perma.cc/7T6F-JUVH](collecting examples); Tom Jones, et. al., Source: Leaked Documents Show the U.S. Government Tracking Journalists and Immigration Advocates Through a Secret Database, NBC7 San Diego (Mar. 6, 2019), https://www.nbcsandiego.com/news/local/source-leaked-documents-show-the-us-government-tracking-journalists-and-advocates-through-a-secret-database/3438/[https://perma.cc/V6F3-P4KG].
- 186Kolsuz, 890 F.3d at 150 (Wilkinson, J., concurring).