Courts allow border agents to freely search Americans’ cell phones
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Courts allow border agents to freely search Americans’ cell phones

“Americans’ rights shouldn’t evaporate when we’re near the border,” said Sen. Ron Wyden.

Americans’ Fourth Amendment protection from unreasonable searches and seizures has been eroded at points of re-entry to the United States, where border officials are free to search Americans’ cell phones without a warrant. 

Since the 2014 Supreme Court case Riley v. California, warrantless searches of personal devices—including cell phones, computers, and online accounts—have been considered a violation of the Fourth Amendment. The unanimous Supreme Court decision was based, in part, on the fact that the personal information and things most people save on cell phones and devices today are similar to the types of physical items that courts had long-established law enforcement needs a warrant in order to search. 

In the last decade, however, lower courts have split on whether warrants are required for smartphone searches at U.S. borders. A number of courts, such as the United States Court of Appeals for the First Circuit and the Eleventh Circuit have ruled that such border searches are constitutional, citing domestic safety as a preemptive concern over “unreasonable” searches.

However, other courts have taken a different stance on the issue, raising concerns over the privacy violations and constitutionality of warrantless searches. In 2019, the U.S.’s Ninth Circuit Court stated that warrantless laptop and cell phone searches at the U.S. border should be incredibly limited and cannot simply consist of officers fishing for evidence or information related to general crimes.

The Ninth Circuit Court said “the uniquely sensitive nature of data on electronic devices carries with it a significant expectation of privacy.”

“Were we to give the government unfettered access to cell phones, we would enable the government to evade the protections laid out in Riley ‘on the mere basis that [the searches] occurred at the border,” the Court added.

Despite these opposing decisions, the 1985 Supreme Court case United States v. Montoya de Hernandez, continues to hold influence. This landmark case was the first time that the Supreme Court declared that U.S. border officials have the right to conduct warrantless searches regardless of whether they have probable cause because it is imperative that border agents vet individuals without having to wait for warrants.

The Supreme Court has not yet heard a case directly combining the considerations of warrantless border searches and cell phone privacy. Thus, absent an applicable Supreme Court decision, border agents continue to use United States v. Montoya de Hernandez to justify searching cell phones without cause, warrants, or any ability to demonstrate the effectiveness of the practice.

Recent investigations from the U.S. Department of Homeland Security uncovered major shortfalls among smartphone searches at the border. In a report, “CBP [Customs and Border Patrol] Continues to Experience Challenges Managing Searches of Electronic Devices at Ports of Entry,” investigators noted several problems with smartphone searches at the border, finding that CBP does not keep statistics on how many searches actually lead to apprehensions. Thus, the argument that CBP needs warrantless searches to protect national security is difficult to make, since they don’t even know if such searches make a difference.

Sens. Ron Wyden (D-OR) and Rand Paul (R-KY) have proposed the Protecting Data at the Border Act (PDBA) to stop the current practice of warrantless searches of cell phones at the border. The bill specifies scenarios that would allow warrantless searches and includes a strict reporting process for border patrol officers who do conduct such searches.

The proposal would help decrease the number of privacy invasions Americans are suffering at the border while still allowing for emergency investigations in limited cases. The legislation would also require reporting on the demographics of individuals who are stopped for cell phone searches and certification that information obtained from these searches is stored securely. 

Searching Americans’ cell phones is a deeply invasive act and, as smartphones have improved and become bigger and bigger parts of our lives, warrantless searches have become even more problematic. In Riley, the Supreme Court noted that changes in cell phones over the prior decade had made the information on them, such as messaging and location capabilities, personal enough to be worthy of protection under the Fourth Amendment. 

Since that ruling in 2014, smartphones have only increased their uses, tracking, and personal data-storing capabilities. Nowadays, smartphones may hold an American’s health documents, personal text and email messages, locations visited, live feeds of home security devices, and even biometric data. Simply put, we have more data on our phones now than ever, and allowing border officials unrestricted access to Americans’ cell phones is a continuous violation of privacy and our Fourth Amendment rights.

As Sen. Wyden so succinctly says, “Americans’ rights shouldn’t evaporate when we’re near the border.”