Ninth Circuit Court of Appeals Has New Opportunity to Protect Device Privacy at the Border

The U.S. Court of Appeals for the Ninth Circuit has a new opportunity to strengthen personal privacy at the border. When courts recognize and strengthen our Fourth Amendment rights against warrantless, suspicionless border searches of our electronic devices, it’s an important check on the government’s power to search anyone, for any or no reason, at airports and border checkpoints.

EFF recently filed amicus briefs in two cases, U.S. v. Cano and U.S. v. Caballero, before the Ninth Circuit arguing that the Constitution requires border agents to have a probable cause warrant to search travelers’ electronic devices.

Border agents, whether from U.S. Customs and Border Protection (CBP) or U.S. Immigration and Customs Enforcement (ICE), regularly search cell phones, laptops, and other electronic devices that travelers carry across the U.S. border. The number of device searches at the border has increased six-fold in the past five years, with the increase accelerating during the Trump administration. These searches are authorized by agency policies that generally permit suspicionless searches without any court oversight.

The last significant ruling on device privacy at the border in the Ninth Circuit, whose rulings apply to nine western states, was in U.S. v. Cotterman (2013). In that case, the court of appeals held that the Fourth Amendment required border agents to have had reasonable suspicion—a standard between no suspicion and probable cause—before they conducted a “forensic” search, aided by sophisticated software, of the defendant’s laptop. Unfortunately, the Ninth Circuit also held that a manual search of an electronic device is “routine” and so the traditional border search exception to the warrant requirement applies—that is, no warrant or any suspicion of wrongdoing is needed.

However, the year after the Ninth Circuit decided Cotterman, the U.S. Supreme Court decided Riley v. California (2014). Although that case did not involve the border context, its analysis and ultimate holding are highly instructive. The Supreme Court held that, while police may search those they arrest without a warrant, when it comes to an arrestee’s cell phone they need a probable cause warrant. The court based its holding on the extraordinary privacy interests that individuals have in the massive amounts of sensitive digital data that their cell phones contain. The court emphasized that electronic devices are nothing like physical containers, such as wallets.

Similarly, in the border search context, electronic devices are nothing like luggage or other physical items that travelers carry across the border. With the vast amounts and kinds of personal data that electronic devices contain—data that can reveal our political affiliations, religious beliefs and practices, sexual and romantic lives, financial status, health conditions, and family and professional associations—EFF argues that the Constitution requires the government to meet a higher burden before accessing this information.

Additionally, we argue that the method of search is irrelevant to the legal analysis of what standards should apply to border searches of electronic devices. Border agents significantly invade travelers’ privacy when they search a cell phone or laptop—whether by hand or with forensic software. In fact, the cell phone searches in Riley were manual searches, yet the Supreme Court applied the maximum Fourth Amendment protection available.

The Ninth Circuit has not yet ruled on whether or how Riley applies to border searches of electronic devices. With Cano and Caballero, the court of appeals has a fresh opportunity to do so—and hopefully will strengthen privacy protections for travelers within its jurisdiction. Affirming the importance of digital privacy, the Caballero court stated, “If it could, this Court would apply Riley.” Yet both district courts felt constrained by Cotterman and so did not require a warrant.

With these Ninth Circuit briefs, EFF has now filed a total of five amicus briefs since 2015 arguing that border agents need a probable cause warrant to search electronic devices at the border. All of these cases, like Riley, were criminal cases where the defendants moved to suppress the evidence obtained from their devices without a warrant. That these were criminal cases should not alter the constitutional analysis. Even though the defendants in Riley were arrestees reasonably suspected of having committed crimes, the Supreme Court still required a warrant under the Fourth Amendment.

Additionally, our Alasaad v. Nielsen case against CBP and ICE is the first civil case post-Riley challenging unconstitutional border searches of electronic devices. Our clients are 11 Americans—10 citizens and one lawful permanent resident—who have not been accused of any wrongdoing. Yet they were subjected to highly intrusive searches of their cell phones and other electronic devices when they tried to re-enter the country.

Thus, whether through our civil case or the criminal appeals where we serve as amicus, we’re hopeful that the courts will explicitly apply Riley to the border and protect the digital privacy of thousands of travelers from unjustified government intrusion.