Arbitrary Phone Searches Banned at Border

John Lister's picture

A court says US customs officials can't examine the contents of phones and laptops at the border without reasonable suspicion of illegal activity. It said current policies violate the Fourth Amendment.

The amendment prevents "unreasonable searches and seizures" and requires warrants based on probable cause. It's been at the centre of numerous technology-related cases as courts decide what constitutes property and searches when it comes to digital devices and information.

The latest case, first brought in 2017, covers the policies of the Customs and Border Protection (CBP) agency and the Immigration and Customs Enforcement agencies.

Agencies Say Searches Unveil Immigration Lies

They both have policies that allow officials to examine digital devices. The CBP policy lays down two types of search, with a basic search being allowed at an agent's discretion, while an advanced search (which uses forensic software) is only allowed with additional authorization.

The agencies both argue that such searches are justified and necessary because they may produce evidence that contradicts claims made by a person seeking to enter or re-enter the US.

The Massachusetts District Court has now rejected that argument. It says that while searches may indeed throw up such evidence, the agencies didn't make a strong case about how often this happens or prove that it's necessary to allow unrestricted access to devices and their contents to find such evidence. (Source:

Court Says Phones Have Different Rules To Pockets

The court also ruled that searches of the data on electronic devices bring bigger privacy concerns - for example, physical searches of people and their possessions, which would normally require additional justification.

While the court claims the policies were unlawful, it also rejected a request for the plaintiffs that any digital device search requires probable cause and a court-issued warrant. Instead, it simply said agents would need reasonable suspicion, which is a lower threshold.

Ten of the 11 plaintiffs in the case are US citizens and the other is a permanent resident. However, it appears the ruling will cover searches of non-citizens entering the country.

Although the two agencies have yet to formally appeal, it seems extremely likely the case will wind up at the Supreme Court as it involves a disputed interpretation of the constitution. (Source:

What's Your Opinion?

Should searches of the files on a device be treated the same way legally as searches of your pockets? What level of evidence and suspicion should be required to make such a search legal? Should the rules on digital searches be different for border officials than for police and other law enforcement agencies?

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ronangel1's picture

Will not do them the slightest good either way. People with things to hide they are trying to find will leave them encrypted in the cloud. No link to cloud in phone and would put url in manually with a password needed to access then download file called say "music" with another strong password to access files maybe one for each file all not written down. So they will not even know cloud address of if it exists to begin with. This is useful as copy of address book, passport details and other important stuff can be left there in case phone lost or stolen. Not of course the standard one used on apple…

russoule's picture

ronangel1, I think maybe you are looking at this as a search for or of drug runners or other outright criminal activity. I believe that most of these searches are likely carried out to determine if "refugee status" is something the border-crosser should be entitled to. As such, the types of data looked at would be Facebook posts, addresses, pictures of family, pictures of the actual reason for asylum and so on. Any search for more illegal information than that would have required a search warrant anyway and that appears to be what the court has said as well, " also rejected a request for the plaintiffs that any digital device search requires probable cause and a court-issued warrant. Instead, it simply said agents would need reasonable suspicion, which is a lower threshold."

Indeed, if it were the cartels trying to cross over, it is more than likely that those individuals would certainly have all incriminating info encrypted and on the cloud as you say. But if a search warrant is issued, even access to the cloud can be determined as legitimate. Each case should stand on its own.