Electronic Frontier Foundation (EFF)

Electronic Frontier Foundation (EFF)

Protecting Your Fourth Amendment Right at the Border
Photo Caption
Graphic of border police searching technology devices.
Photo Credit
Hugh D'Andrade

For decades, EFF has been fighting in the courts to change how warrantless searches work at the U.S. border. After a recent decision in United States v. Smith, our work has paid off. In this case, a district court judge in New York ruled that a warrant is required for a cell phone search at the border.

There are generally strong limits on the American government’s ability to gaze into our personal lives. Though, this changes at the border. For a long time, the Supreme Court has recognized a border search exception to the Fourth Amendment’s warrant requirement, allowing for suspicionless and warrantless searches of traveler's luggage when crossing the U.S. border. Up until this recent court ruling in New York, this included warrantless searches of electronic devices, such as cell phones, tablets, and laptops.

This border search exception was based on the idea that travelers aren’t as conscious about the privacy of their luggage. This may make sense for clothes, toiletries, and other travel items, but not electronic devices. Our lives are entirely on our devices, carrying a considerably high amount of personal data, including private emails and text messages, photos and videos, medical conditions, travel history, and more.

Warrantless device searches at the border are a significant invasion of travelers' privacy. Just last year, in fiscal year 2022, Customs and Border Patrol (CBP) conducted an all-time high of 45,499 devices searches, a 21.5% increase from fiscal year 2021.

The U.S. Department of Homeland Security might believe that we lose our constitutional rights at the border, but we do not. EFF has argued for decades that a warrant based on probable cause, issued by a judge, is required for searches of electronic devices at the border. We even asked the Supreme Court to consider the border search exception with regards to electronic devices in 2021, but they have not.

“The U.S. Department of Homeland Security might believe that we lose our constitutional rights at the border, but we do not."

Thankfully, federal appellate courts have considered this question. In United States v. Cano (2019), the Ninth Circuit held that a warrant is required for a device search at the border that that seeks data other than “digital contraband” such as child sexual abuse material. The Ninth Circuit in Cano was informed by a different Supreme Court case, Riley v. California (2014), where it was held that the police must get a warrant to search an arrestee’s cell phone.

Since Riley, EFF has made the same argument: there is too much personal information on our devices for them to be searched at the border without probable cause and a warrant. Our work is making a difference. The Smith court cited Cano extensively in its decision to require a warrant for device searches, and Cano was heavily influenced by our amicus brief that we submitted for the case.

If United States v. Smith is appealed to the Second Circuit, you can count on EFF to be there fighting to get the appellate court to affirm this landmark decision.

Outside of the courts, EFF has been doing other work to protect digital rights at the U.S. border. We have a comprehensive travel guide on how to protect your digital data when crossing the U.S. border. We also have steps for travelers to take if their devices do get seized.

Your support powers EFF’s work to fight for digital freedoms. Without EFF’s arguments and amicus briefs in other cases, this ruling in Smith could be very different. Thank you for being a part of this change.

Get to know EFF!

The Electronic Frontier Foundation is the leading nonprofit on the frontlines of fighting for your digital rights. With support from people like you, we're fighting hard to protect online privacy, free expression, and innovation, whether through impact litigation, policy analysis, grassroots activism, and technology development. Our mission is to ensure that our rights and freedoms are enhanced as our use of technology grows. With your support, EFF can continue our strides towards internet freedom. Recently we have: pushed Apple to pause its plan to install dangerous message and photo scanning features onto its devices, and worked with California residents and lawmakers to pass one of the largest state investments in public fiber broadband in U.S. history. Government employees have a tremendous impact on the shape of our democracy and the future of civil liberties and human rights online. Support our work today by using our CFC ID number 10437 when you make a pledge!

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