EFF to Second Circuit: Electronic Device Searches at the Border Require a Warrant

EFF, along with ACLU and the New York Civil Liberties Union, filed an amicus brief in the U.S. Court of Appeals for the Second Circuit urging the court to require a warrant for border searches of electronic devices, an argument EFF has been making in the courts and Congress for nearly a decade.

The case, U.S. v. Kamaldoss, involves the criminal prosecution of a man whose cell phone and laptop were forensically searched after he landed at JFK airport in New York City. While a manual search involves a border officer tapping or mousing around a device, a forensic search involves connecting another device to the traveler’s device and using software to extract and analyze the data to create a detailed report the device owner’s activities and communications. In part based on evidence obtained during the forensic device searches, Mr. Kamaldoss was subsequently charged with prescription drug trafficking.

The district court upheld the forensic searches of his devices because the government had reasonable suspicion that the defendant “was engaged in efforts to illegally import scheduled drugs from abroad, an offense directly tied to at least one of the historic rationales for the border exception—the disruption of efforts to import contraband.”

The number of warrantless device searches at the border and the significant invasion of privacy they represent is only increasing. In Fiscal Year 2023, U.S. Customs and Border Protection (CBP) conducted 41,767 device searches.

The Supreme Court has recognized for a century a border search exception to the Fourth Amendment’s warrant requirement, allowing not only warrantless but also often suspicionless “routine” searches of luggage, vehicles, and other items crossing the border.

The primary justification for the border search exception has been to find—in the items being searched—goods smuggled to avoid paying duties (i.e., taxes) and contraband such as drugs, weapons, and other prohibited items, thereby blocking their entry into the country.

In our brief, we argue that the U.S. Supreme Court’s balancing test in Riley v. California (2014) should govern the analysis here. In that case, the Court weighed the government’s interests in warrantless and suspicionless access to cell phone data following an arrest against an arrestee’s privacy interests in the depth and breadth of personal information stored on a cell phone. The Supreme Court concluded that the search-incident-to-arrest warrant exception does not apply, and that police need to get a warrant to search an arrestee’s phone.

Travelers’ privacy interests in their cell phones and laptops are, of course, the same as those considered in Riley. Modern devices, a decade later, contain even more data points that together reveal the most personal aspects of our lives, including political affiliations, religious beliefs and practices, sexual and romantic affinities, financial status, health conditions, and family and professional associations.

In considering the government’s interests in warrantless access to digital data at the border, Riley requires analyzing how closely such searches hew to the original purpose of the warrant exception—preventing the entry of prohibited goods themselves via the items being searched. We argue that the government’s interests are weak in seeking unfettered access to travelers’ electronic devices.

First, physical contraband (like drugs) can’t be found in digital data. Second, digital contraband (such as child pornography) can’t be prevented from entering the country through a warrantless search of a device at the border because it’s likely, given the nature of cloud technology and how internet-connected devices work, that identical copies of the files are already in the country on servers accessible via the internet.

Finally, searching devices for evidence of contraband smuggling (for example, text messages revealing the logistics of an illegal import scheme) and other evidence for general law enforcement (i.e., investigating non-border-related domestic crimes) are too “untethered” from the original purpose of the border search exception, which is to find prohibited items themselves and not evi