EFF to Ninth Circuit: Border Searches of Electronic Devices Require a Warrant

Although the Ninth Circuit issued a strong opinion last year in favor of digital privacy rights at the border, EFF filed an amicus brief [PDF] in a new case urging the court to go a step further. The Ninth Circuit should finally hold that the Fourth Amendment requires a probable cause warrant for border searches of electronic devices.

Our brief was filed in a case brought by Haisam Elsharkawi, a U.S. citizen who attempted to board a flight at Los Angeles International Airport to Saudi Arabia to attend a Muslim religious pilgrimage. Border agents removed him from the boarding line and began questioning him. Elsharkawi repeatedly asked for a lawyer and border agents took him to a holding cell and handcuffed him to a bench. They also searched his carry-on bag and person, and he witnessed border agents manually search his two cell phones. He believes that one phone was also forensically searched.

Elsharkawi brought a civil case against the government—similar to our civil case Alasaad that we’re litigating with ACLU—challenging U.S. Customs and Border Protection’s (CBP) 2018 policy authorizing suspicionless manual searches of electronic devices at the border.

The district court rejected Elsharkawi’s claim [PDF], following a 2013 opinion from the Ninth Circuit, U.S v. Cotterman, which held that that manual searches of electronic devices at the border are “routine” searches that do not require any individualized suspicion, while forensic searches are “non-routine” searches that require reasonable suspicion (a standard lower than probable cause).

The border search exception to the Fourth Amendment’s warrant requirement has traditionally permitted warrantless searches and suspicionless “routine” searches of belongings and persons at the U.S. border.

We argued in our brief that, at minimum, the Ninth Circuit panel hearing Elsharkawi’s appeal should apply the recent Ninth Circuit ruling in U.S. v. Cano (2019) [PDF], which followed Cotterman’s dichotomy but further clarified that all electronic device searches at the border, “whether manual or forensic, must be limited in scope to a search for digital contraband.”

Additionally, we argued that the Ninth Circuit has an opportunity to revisit the issue of what Fourth Amendment standards apply to electronic devices at the border. We urged the court to hold that the Fourth Amendment requires a probable cause warrant for all device searches, irrespective of how the devices are searched, in light of the Supreme Court’s opinion in Riley v. California (2014) and the extraordinary privacy interests people have in their electronic devices such as cell phones and laptops.

Courts are recognizing that the border should not be a Constitution-free zone. In our Alasaad case, a Massachusetts district judge held on summary judgment that for both manual and forensic searches, the Fourth Amendment requires border agents to have reasonable suspicion that an electronic device contains digital contraband. She did not go as far as we wanted, but her historic opinion was highly pro-privacy and protective of travelers’ highly sensitive data. The case is currently on appeal to the U.S. Court of Appeals for the First Circuit.