Before the United States Constitution was even drafted, there was a great debate taking place in 1755 regarding the issues of border security and national defense. During this debate, an infamous dispute arose concerning the Pennsylvania General Assembly’s attempt to tax the Penn family farm lands in an effort to raise money to protect colonial borders during the French and Indian War. Benjamin Franklin, an American Founding Father, wrote a very famous letter that would often be quoted out of context.
Franklin, writing on behalf of the Pennsylvania General Assembly, instructed the colonial governor, who had been appointed by the Penn family (who owned the lands of Pennsylvania, but lived overseas at the time) that “those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety.” It is ironic that Franklin’s comments, although written for the purpose of expressing that “essential liberty” would be realized when legislatures exercised self-governance, would often be cited in arguments opposing that very notion.
While the borders of the United States have expanded dramatically since the French and Indian War, the issues related to national security and border protection have not, with one major exception – the advent of technology. Today, the United States Customs and Border Protection (CBP), an agency hailing under the Department of Homeland Security, has been conducting warrantless searches of cell phones, computers, and other electronic devices containing data under the guise of claimed authority that has yet to be tested by the United States Supreme Court. These searches range from agents briefly thumbing through a cell phone on the spot, to more invasive searches consisting of seizing a cell phone and its owner for an extended period time, making copies of the cell phone’s contents to be analyzed off-site by forensic investigators, and then storing the downloaded and copied data if it is “necessary for law enforcement purposes.”
The CBP boasts the authority to conduct these searches pursuant to several United States statutes alongside a government interest in protecting the American public.
How are border patrol agents able to conduct these intrusive searches? In a tear sheet that CBP officers give to those seeking entry into the United States, the CBP boasts the authority to conduct these searches pursuant to several United States statutes alongside a government interest in protecting the American public. Under 8 U.S.C. § 1357(c), which provides that a warrantless search of a person seeking entry into the United States and his or her effects is permissible, the CBP claims a right to search the cell phone, computer, or any other electronic device of an individual. The CBP further cites 19 U.S.C. §§ 1499, 1581, and 1582 which together purport to grant the CBP further rights related to these warrantless searches.
The same CBP tear sheet that claims authority for these warrantless cell phone searches also claims that “because the border is a law enforcement environment, CBP officers may not be able to answer all of your questions about an examination that is underway.” If the CBP can excuse itself from answering the questions of those being subjected to warrantless searches by likening itself to law enforcement, then it stands to reason that the CBP also ought to be held to the same Constitutional standards that govern law enforcement’s warrantless searches of cell phones, an issue the United States Supreme Court addressed directly in its landmark case of Riley v. California (2014).
In Riley, the Court held that the Fourth Amendment requires that law enforcement secure a warrant before searching the contents of a cell phone, as the cell phone potentially contains a massive amount of personal information, including intimate details of a person’s most private aspects of life. By requiring law enforcement to first obtain a warrant before conducting a search of a cell phone, the Court demonstrated that warrantless searches of cell phones conducted by law enforcement are unreasonable under the Fourth Amendment.
When considering warrant requirements for Fourth Amendment searches, the border, or at least a national security interest, can alter the balancing test employed by the US Supreme Court.
Instead, the CBP claims a special circumstance that justifies its right to conduct these warrantless searches, and distinguishes itself from the scenario in Riley by recognizing the government’s interests in national security and public safety. In Riley, the context of the search at issue did not involve the border, and it did not implicate national security concerns. Instead, when considering warrant requirements for Fourth Amendment searches, the border, or at least a national security interest, can alter the balancing test employed by the Supreme Court.
In United States v. Martinez-Fuerte (1976), the Supreme Court held that warrantless border searches were Constitutional under the Fourth Amendment, and that reasonable suspicion was not first required in order to conduct these stops. The Court took this position even further in United States v. Flores-Montano (2004), in which it held that reasonable suspicion was not required in order to “remove, disassemble, and search a vehicle’s gas tank for illegal material” while at the border. The Court arrived at its decision in Flores-Montano by acknowledging that such a search “is justified by the government’s paramount interest in protecting the border.”
According to the Supreme Court’s analysis in Riley, the threat posed by cell phones might not be as exigent as CBP might assume.
But does this information found in cell phones, laptops, and iPads, really present such an immediate danger to national security that CBP officers cannot first obtain a warrant before conducting the search? According to the Supreme Court’s analysis in Riley, the threat posed by cell phones might not be as exigent as CBP might assume. Throughout the majority opinion in Riley, Chief Justice John Roberts explained that “law enforcement officers remain free to examine the physical aspects of a phone to ensure that it will not be used as a weapon – say, to determine whether there is a razor blade hidden between the phone and its case” but that “once an officer has secured a phone and eliminated any potential physical threats, however, data on the phone can endanger no one.” Chief Justice Roberts recognized:
“[M]odern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life.’ The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.”
The Unites States Court of Appeals for the Ninth Circuit, which has jurisdiction over Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington, has taken up the issue of warrantless searches of cell phones. In United States v. Cotterman (2013), the Ninth Circuit held that reasonable suspicion of criminal wrongdoing is required before a border patrol officer is authorized to conduct a full forensic search of an electronic device, in which the content is downloaded or otherwise saved and analyzed. The Court further held that a cursory search of an electronic device, in which border agents simply scroll through a device informally, could be conducted without suspicion.
With well-fortified arguments on both sides, the American Civil Liberties Association (ACLU), working alongside the Electronic Frontier Foundation (EFF), has filed a lawsuit against the Department of Homeland Security seeking the resolve this issue definitively and put the arguments to the test. According to the ACLU, many of the plaintiffs in the case come from a variety of backgrounds, and several are Muslims or people of color. These plaintiffs had not been accused of any wrongdoing or criminal conduct, but many of them lost their cell phones for extended periods of time, ranging from several weeks to months.
The lawsuit, Alasaad v. Duke, which was filed in the United States District Court for the District of Massachusetts, “seeks to establish that the government must have a warrant based on probable cause to suspect a violation of immigration or customs laws before conducting such searches.” This litigation is still in its early stages, so one can only watch and wait as these issues are thoughtfully considered by the courts.
Some 250 years ago, Franklin penned his famous letter against the Penn family (or perhaps the Pennsylvania General Assembly), in which he argued in defense of border security by saying that anyone who would give up essential liberty for temporary security deserved neither. But 250 years later, the argument remains open and alive, with the continuous battle between civil liberties and national security raging as strongly as ever. With this new litigation put forward by the ACLU and the EFF, the opportunity for closure is within sight. Until the Supreme Court decides this issue definitively, the borders surrounding warrantless data searches will remain open.