The Supreme Court allows routine border searches because the “Government’s interest in preventing the entry of unwanted persons and effects is at its zenith at the international border.” Some level of suspicion is required only when a search infringes the dignity and privacy interest of the persons being searched. Circuits are now split about whether reasonable suspicion is needed to justify a forensic search of information stored on an electronic device.

Did Riley Change the Standard?

It has long been the rule that the United States may conduct warrantless searches of persons and property at the border. Though the Supreme Court has never defined precisely what constitutes a “routine” versus an “invasive” border search for purposes of requiring reasonable suspicion, the Court examined the issue of warrantless searches of electronic devices in its 2014 decision Riley v. California. In Riley, a unanimous Court held that a warrant is “generally required” before searching information stored on a cell phone seized incident to an arrest, unless there is a need to prevent the imminent destruction of evidence, to pursue a fleeing suspect, or to assist persons who are seriously injured or are threatened with imminent injury. The Supreme Court reasoned that cell phones, as opposed to wallets, are essentially mini computers filled with massive amounts of private information.

Eleventh Circuit Rules No Suspicion Necessary

On May 23, 2018, the Eleventh Circuit caused a circuit split over whether the Riley decision limited the border search exception as applied to electronic devices. In United States v. Touset, the Eleventh Circuit held that no suspicion is necessary to search electronic devices seized at the border. In Touset, a defendant’s cell phones, camera, laptops, external hard drives, and tablets were inspected at the airport. The Customs and Border Patrol (“CBP”) agent manually inspected the cell phones and camera and returned the devices after finding nothing. The remaining electronic devices, however, were sent to a computer forensic analyst where child pornography was discovered.

The Eleventh Circuit looked to precedent holding that suspicion is not needed to conduct routine searches of the persons and effects of entrants at the border.  The Court found that, although the Supreme Court had stressed that a search of cell phones risks significant intrusion on privacy, the Riley decision did not apply to border searches. The panel explained: “[W]e fail to see how the personal nature of data stored on electronic devices could trigger this kind of indignity when our precedent establishes that a suspicionless search of a home [or cruise ship cabin] at the border does not. … Property and persons are different.” The panel found no reason why the Fourth Amendment would require suspicion for a forensic search of an electronic device when it imposes no such requirement for a search of other personal property. Alternatively, the panel found that the CBP agents had reasonable suspicion to search defendant’s electronic devices.

Conflict With Other Circuits

This interpretation directly contravenes recent decisions in the Fourth and Ninth Circuits, which held there needs to be at least reasonable suspicion to conduct forensic device searches in light of the privacy interests recognized in Riley. In United States v. Cotterman the Ninth Circuit equated forensic searches of electronic devices to a “computer strip search” and found that such a thorough and detailed search of the most intimate details of one’s life is a substantial intrusion upon personal privacy and dignity. In United States v. Kolsuz the Fourth Circuit found that the Supreme Court confirmed in Riley that there is a distinction between routine and non-routine searches of property.  Intrusiveness includes both the extent of a search as well as the degree of indignity that may accompany a search.

Waiting For The Supreme Court

For now, the decisions do not impact data stored remotely in a cloud. CBP policy bars searches of information stored remotely as well as requires reasonable suspicion for advanced searches (i.e. review, copy, or analyze). Until the Supreme Court examines this issue, however, the question of whether a search of electronic devices at the border infringes on the dignity and privacy interests of the person, and therefore requires reasonable suspicion, remains open. Meanwhile, whether a border guard needs reasonable suspicion to search your electronic devices depends on where you enter the country.