Electric Frontier Foundation

Whether Conducted Manually or Using Forensic Software, Cell Phone Searches Are Highly Intrusive

New Orleans, Louisiana—Searches of mobile phones, laptops, and other digital devices by federal agents at international airports and U.S. land borders are highly intrusive forays into travelers’ private information that require a warrant, the Electronic Frontier Foundation (EFF) said in a court filing yesterday.

EFF urged the U.S. Circuit Court of Appeals for the Fifth Circuit to require law enforcement officers at the border to obtain a warrant before performing manual or forensic searches of digital devices. Warrantless border searches of backpacks, purses, or luggage are allowed under an exception to the Fourth Amendment for routine immigration and customs enforcement. Yet EFF argues that, since digital devices can provide so much highly personal, private information—our contacts, our email conversations, our work documents, our schedules—agents should be required to show they have probable cause to believe that the device contains evidence of a violation of the immigration or customs laws. Only after a judge has signed off on a search warrant should border agents be allowed to rifle through the contents of cell phones, laptops, or tablets.

Digital device searches at the border have more than doubled since the inauguration of President Trump. This increase, along with the increasing number of people who carry these devices while traveling, has highlighted the need for stronger privacy rights while crossing the U.S. border.

“Our cell phones and laptops provide access to an unprecedented amount of detailed, private information, often going back many months or years, from emails to our coworkers to photos of our loved ones and lists of our closest contacts. This is light years beyond the minimal information generally contained in other kinds of personal items we might carry in our suitcases. It’s time for courts and the government to acknowledge that examining the contents of a digital device is highly intrusive, and Fourth Amendment protections should be strong, even at the border,” said EFF Staff Attorney Sophia Cope.

EFF filed its brief with the U.S. Court of Appeals for the Fifth Circuit in U.S. v. Molina-Isidoro. In that case, Maria Isabel Molina-Isidoro’s cell phone was manually searched at the border, supporting her prosecution for attempting to import methamphetamine into the country.

The Supreme Court has held that cell phones hold “the privacies of life,” and police need a warrant to search the contents of a phone seized during an arrest. The same principle should apply to the digital devices seized at the border, EFF told the appeals court.

“Any search of data stored on a digital device, whether performed using special forensic software or conducted manually after obtaining and entering the owner’s password, provides access to a person’s entire private life,” said EFF Senior Staff Attorney Adam Schwartz.

EFF is urging the court to find that the extraordinary privacy interests that travelers have in their digital devices render warrantless searches of those devices unreasonable under the Fourth Amendment. Border agents should be required to show they have sufficient cause for this immense invasion of privacy.

For the brief:
https://www.eff.org/document/us-v-molina-isidoro-eff-brief

For more about digital privacy at the U.S. border:
https://www.eff.org/files/2017/03/08/border-privacy.pdf

Contact:

Sophia Cope

Adam Schwartz