U.S. Appeals Court: Manual Phone Search at the Border Requires No Suspicion

The U.S. Court of Appeals for the Fourth Circuit has issued its ruling in U.S. v. Belmonte Cardozo, a case in which the EFF, together with the ACLU, its affiliates in four states, and the National Association of Criminal Defense Lawyers, filed an amicus curiae brief. The advocates argued that searches of electronic devices at the border should require a warrant based on probable cause — or, at the very least, that the same Fourth Amendment standard should apply regardless of whether an officer scrolls through a phone by hand or connects it to forensic software that copies its entire contents. The court disagreed.

The border exception and your phone

The Fourth Amendment requires that searches be “reasonable,” which usually means having a warrant. But there are a number of exceptions, including the “border” exception: inspecting the belongings of people crossing the border (including at international airports) has traditionally been treated as “routine” and permitted without any suspicion at all. More invasive “non-routine” searches, such as a strip search, require reasonable suspicion.

Yet a person's interest in the private data on a smartphone is incomparable to their interest in the contents of a suitcase. In Riley v. California (2014), the Supreme Court recognized that even a cursory look through a phone can reveal “the sum of an individual's private life” — political views, religious beliefs, sexuality — and therefore calls for a separate assessment. Relying on Riley, the same Fourth Circuit had earlier held that forensic searches of devices at the border require individualized suspicion (Kolsuz, 2018), and in purely domestic investigations, a warrant (Aigbekaen, 2019).

A disappointing decision

Jose Belmonte Cardozo, who was already on the authorities' radar, flew from Bolivia into Washington Dulles Airport, where a CBP officer manually browsed his phone and discovered child sexual abuse material. The court ruled that, unlike forensic searches, manual searches are “routine” and require neither a warrant nor suspicion.

The court listed four technical differences of a manual search: it is conducted by a human rather than a machine; its depth is limited by the officer's time and stamina; it uncovers only what is available to an ordinary user, not deleted files and metadata; and it relies on the officer's memory rather than a permanent copy. But, as the EFF notes, the court never explained why these differences justify a lower standard. The outcome of the search is equally invasive — whether it is obtained by the officer's thumbs or by a program.

The court placed particular emphasis on the fact that the search lasted only two minutes. Yet two minutes of scrolling through someone else's messages or photos is enough to intrude on their private life. What is more, as built-in search improves, a manual search can locate by keyword in seconds what once took an hour.

A glimmer of hope

Relying on the brevity of the search, the court left open the possibility that longer manual reviews might still require a heightened standard of suspicion. But until a clear line is drawn, border agents within the circuit's jurisdiction can bypass Fourth Amendment protections simply by choosing a manual search. The EFF pledges to keep fighting against warrantless and suspicionless searches of devices at the border.

Source: EFF Deeplinks