Digital devices are increasingly becoming indispensable in our daily lives – modern phones hold a vast amount of personal data that can be easily accessed with just a few taps of a screen. While this convenience enhances our daily routines, it can also pose significant privacy issues when these devices are subjected to searches by government agents.
The Border Search Doctrine
The Fourth Amendment protects against unreasonable searches and seizures, generally requiring the government to secure a warrant or establish probable cause before conducting a search. Yet, the border search doctrine is a unique exception, permitting routine inspections of items crossing the border without these safeguards. In United States v. Ramsey, the United States Supreme Court held that “searches made at the border, pursuant to the long-standing right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border.” Nevertheless, if a search extends beyond the norms of a routine inspection, it may still be deemed unreasonable. In such cases, border agents must demonstrate at least a “reasonable suspicion” motivating the search, a requirement that is less demanding than probable cause.
Challenges in the Doctrine’s Application to Electronic Devices
Typically, the doctrine’s implementation at the border is straightforward. Routine inspections may include pat-downs, pocket searches, and even limited adjustments of clothing, as well as the scanning or opening of bags and other containers. These practices aim to prevent the entry of illegal contraband into the country. However, when it comes to digital devices such as smartphones, laptops, and tablets, the application of this doctrine becomes much more difficult.
Of particular concern are forensic searches, which involve extracting every bit of data from a device—including deleted files, application data, GPS locations, call logs, text messages, photos, and videos. Law enforcement often use this search to extract and thoroughly analyze the contents of a device at a later time, circumventing the limitations of a brief, manual inspection. The result is quick access to vast amounts of personal data, something that would be virtually impossible in the context of inspections of physical documents. Although it has yet to tackle searches of electronic devices under the border search doctrine, the Supreme Court addressed a similar issue in Riley v. California, holding that police must secure a warrant before searching cell phones in the wake of an arrest. In justifying this decision, it characterized modern phones as “minicomputers” with extensive storage capabilities, very much unlike the everyday objects we typically associate with searches, such as wallets. It remains uncertain, however, the extent to which this rationale applies at the border. Currently, the U.S. Customs and Border Patrol’s policy permits warrantless, basic inspections of all electronic devices, including phones, at the border. This “generally entails an officer reviewing the contents of the device manually without the assistance of any external equipment.” However, some courts are reluctant to extend this leniency to the more intrusive forensic searches.
Disagreement Between Courts and Recent Applications
There is a notable inconsistency in how lower courts have addressed this issue. In United States v. Smith, a 2023 District Court decision from the Southern District of New York, the court found the warrantless forensic search of an individual’s cell phone at an airport to be unconstitutional. Relying on the reasoning from Riley, the court emphasized that a cell phone “likely contains huge quantities of highly sensitive information” and therefore the significant privacy interest at stake required a warrant. In contrast, multiple circuit courts have maintained that even forensic searches should only require reasonable suspicion rather than a warrant. Advocacy groups like the EFF, ACLU, and New York Civil Liberties Union are pushing for stronger privacy safeguards in alignment with the Smith decision, arguing that even manual searches of a digital device without a warrant is a violation of the Fourth Amendment.
Amidst this legal uncertainty, searches of electronic devices at entry to the US have reportedly been ramping up. There have recently been multiple instances of individuals being denied entry to the US based on contents found on their phones via searches. Just last month, a French scientist was denied entry in Houston after customs agents found comments critical of the Trump administration in messages on his phone. Similarly, a professor at Brown University was deported after photos and videos allegedly connected to Hezbollah were found on her phone at Boston Logan International Airport. Although the nature of these searches (whether they were routine or extensive) is unclear, they highlight the type of information that customs agents may be able to access.
Although it’s undeniable that the United States government has a strong national security interest in regulating what is transported across its borders, it must be balanced with the goal of preserving civil liberties. Under this view, it seems that the all-encompassing role of digital devices does necessitate some extra protection. Phones, tablets, and laptops are not quite the same as other everyday objects because of the access they have to the most personal aspects of our lives. A reasonable suspicion standard, the current policy employed by the CBP for extensive searches, seems to be a decent compromise under this framing, as it protects against completely arbitrary, intrusive searches. However, whether extensive searches of these devices should be protected by the requirements of a warrant, a lower reasonable suspicion standard, or no safeguard whatsoever remains a question that courts will continue grappling with until the US Supreme Court offers clarity on the matter.
Imran Hasan is an Associate Editor on the Michigan Technology Law Review.