Practical Pieces & Perspectives

On average, approximately one million people cross the Mexico-U.S. border in each direction every day.[1] Of those crossings, only a handful occur illegally.[2] In 2017, there were almost 77 million international arrivals into the U.S., including arrivals from Mexico and Canada.[3] As our use of technology is ever-increasing, the amount of electronic devices that travelers bring along with them is increasing along with it.[4] In 2017, border agents at the U.S. border and at airports searched nearly 30,200 cellphones, computers, and other electronic devices of travelers entering and exiting the United States.[5] These numbers are an almost sixty percent increase from 2016.[6] With the growth in the use of portable technology such as cellphones and laptops, there remain many unanswered questions as to how and when searches of electronic devices can be conducted at our nation’s borders.[7]

Some may believe that the Fourth Amendment affords blanket protection to Americans against searches and seizures by law enforcement.[8] This idea comes from the landmark decision in Terry v. Ohio, in which the Supreme Court held that police officers must be allowed to search for weapons for the protection of the police officer and the community when they observe unusual conduct, leading them to believe that criminal activity is being committed and those that they are observing are likely armed and dangerous.[9] This decision has sparked years of controversy within the courts, and brought to light many questions that the Court did not consider at the time of its decision, such as the issue of whether reasonable suspicion is required for electronic device searches at the American border.

There have been many activists who argue that border examinations of electronic devices violate the Fourth Amendment protection against unreasonable searches and seizures;[10] their arguments are not entirely unsubstantiated. The Supreme Court of the United States lent support to this contention with Riley v. California—in which it held that officers could not search electronic devices incident to arrest without first obtaining a warrant.[11] The Court articulated three main arguments for their holding.[12] The first was that, although officers could examine the phones to make sure they could not be used as weapons against the officers, the data actually stored on the phone could not itself be used as a weapon in order to help the defendants escape.[13] Second, the ability for the defendants to destroy the evidence on the cellphones was not ubiquitous and could easily be fought by disabling the phones, putting them in airplane mode, or locking them if they were found unlocked in order to ensure that the phone does not lock and encrypt the data on the phone.[14] Third, the privacy owed to citizens is higher with respect to electronic devices because the quantity of data stored on phones is higher and more pervasive than physical records of the past.[15] Thus, the Court stated, just because electronic devices allow individuals to carry more information than they were originally able to, they are not worthy of less protection than the Fourth Amendment originally allowed for.[16]

Court are split on the issue of electronic device searches conducted by border agents, as evidenced by decisions in the U.S Courts of Appeals in the Fourth, Ninth, and Eleventh Circuits. The primary question these courts faced were whether or not to enact a standard of operation for the officers (e.g., reasonable suspicion) by which they should abide before conducting such searches, and what that standard might be.

This section also introduces the law of the U.K., allowing officers to stop travelers at random to search their belongings (including electronic devices) to determine whether they pose terrorist threats.

Hamza Kolsuz was detained at the Washington Dulles International Airport in Chantilly, Virginia[17] because customs agents found firearm parts in his luggage while he was attempting to board an airplane to Turkey.[18] The agents then took Kolsuz’s cellphone and sent it to an offsite forensic analysis, which yielded a 900-page report of the phone’s data.[19] The court stated that the justification for the border exception was enough to categorize the search as a border search, despite the temporal and spatial distance between the examination and the airport.[20] However, relying on precedent in Riley, the search was considered nonroutine, and therefore required some measure of individualized suspicion.[21] Although there is no exact definition for “nonroutine,” these are often “highly intrusive” and infringe upon “dignity and privacy interests.”[22] The court adopted the analysis of the lower court in explaining that courts focus on how deeply a search invades into a person’s privacy to determine whether a search is considered nonroutine. [23] Nonroutine searches are permitted under the border search exception, but they must be accompanied by the appropriate level of individualized suspicion.[24] The Court here deferred to the ruling of the lower court in holding that reasonable suspicion is required in cases of searches of electronic devices at the border.[25] In making its decision, the court avoided the task of deciding whether reasonable suspicion or a higher standard is required for border searches of electronic devices by deferring to the lower court—thus establishing reasonable suspicion as the test required for an electronic search of this nature in the Fourth District.[26]

With its decision in United States v. Cotterman, the United States Court of Appeals for the Ninth Circuit changed the state of the Fourth Amendment as it related to searches at the U.S. border.[27] The Ninth Circuit held that customs officers must have reasonable suspicion that an individual is engaging in criminal activity before they can conduct a forensic search of the traveler’s computer at the border.[28]

When Howard Cotterman and his wife reached an Arizona Port of Entry upon their return home from a Mexico vacation, the border agent’s primary inspection returned a hit for Cotterman, indicating that he was a convicted sex offender.[29] The Cottermans were ordered to exit their vehicle, which was searched, yielding two laptop computers and three digital cameras.[30] Customs agents instructed the searching officer to inspect the electronic devices, who could not view some password-protected files.[31] When U.S. Immigration and Customs Enforcement (ICE) agents arrived, they interviewed the Cottermans but, nothing incriminating was revealed; they allowed them to leave, but retained their laptops and a digital camera.[32] Upon the items being delivered to the ICE office in Tucson, Arizona, the camera and laptops underwent forensic examination where they revealed pornographic images of children.[33]

In this case, there were many factors that supported the border agents’ reasonable suspicion of Cotterman’s criminal activity: the alert when he was crossing the border, his prior related conviction, coming into the U.S. from a country that was known to agents as a country for sex tourism, and multiple electronic devices present in his car, among others.[34] The court stated that these factors were enough to satisfy the Fourth Amendment, and thus imposed a reasonable suspicion standard for forensic laptop searches.[35]

In deciding this case, the Court attempted to balance strong privacy concerns for travelers with the importance of border officials protecting U.S. borders and the American people. Ultimately though, it decided to favor the border agents in their efforts more than protect the privacy of travelers at the border.[36] Therefore, the requirement adopted by the Ninth Circuit, setting the stage for other courts, is the requirement of reasonable suspicion for forensic searches of electronic devices at the border.[37]

In 2018, the U.S. Court of Appeals for the Eleventh Circuit handed down two decisions related to border searches.[38] In the first, Javier Vergara returned to Tampa, Florida on a cruise ship from Cozumel, Mexico with three cellphones.[39] United States Customs officials asked Vergara to turn one of the phones on; while searching through it for about five minutes, the officer found a video with two topless minors, prompting him to call Homeland Security.[40] After interviewing Vergara, Homeland Security took all three cellphones in for forensic examination, which revealed more than 100 images and videos involving the use of a minor in sexually explicit conduct.[41]

The court analyzed Vergara’s claim in which he argued that, due to the decision in Riley,[42] the forensic examination should have required a warrant by Homeland Security and the border agents; the court disagreed because searches conducted at the border “never” require probable cause or a warrant.[43] The court based its reasoning on the fact that in court history, courts have never imposed additional requirements of probable cause to determine the reasonableness of border searches.[44]

Two months later, in May of 2018, the Eleventh Circuit created a split within the courts[45] that may draw the attention of the Supreme Court to this issue.[46] The Touset court disagreed with the decisions in Kolsuz and Cotterman, in stating that suspicion should never be required for a forensic border search of electronic devices.[47] The court reasoned that because the Fourth Amendment does not require reasonable suspicion for other forms of property at the border, there is no reason it should be required for electronic devices, because personal electronic devices are in and of themselves, personal property.[48]

The Eleventh Circuit, in overruling the district court, presented a new decision: that no suspicion was required in the first place.[49] The Court reasoned that there is no reason why they should require reasonable suspicion for forensic searches of electronic devices at the border when there is no such requirement for other personal property.[50] The Court further reasoned that border agents have the same responsibility of preventing contraband from entering the U.S. regardless of the type of property it is.[51] The Court stated that the only reasonable suspicion that has been required has been for “highly intrusive searches of a person’s body,”[52] and since that is not the case here, reasonable suspicion is not required.[53]

One of the United Kingdom’s strongest police powers is the unfettered discretion to stop travelers entering their borders to search their electronic devices, and retain the information on them for as long as necessary, in order to determine whether the traveler poses a terrorist threat.[54] Specifically, the data that can be scoured includes call history, contacts, pictures, who the owner of the phone is texting, calling, and e-mailing.[55] The only restriction U.K. border agents face here is that the contents of the messages on the phone cannot be searched through.[56] Further, like in the U.S., officers inside of U.K. borders must have grounds for suspicion to stop people (e.g., on the streets) and can only seize their cellphones if the individual has been arrested.[57]

Terrorism Act 2000 (“The Act”) notably widened the latitude of search and seizure, allowing police officers to search electronic devices at the U.K.’s borders.[58] It states that “an examining officer may search a person and anything they have with them or that belongs to them, which is aboard a ship or aircraft or the officer believes is going to be on a ship or aircraft, without reasonable suspicion.”[59] The Act allows border agents to question and hold travelers while they determine whether the traveler poses a terrorism risk; the aim of this provision is to determine whether the traveler is somebody who has committed terrorism, or has been involved in the preparation or instigation of such acts.[60] The Act essentially allows agents to stop passengers at random, look through their phones and download their data, even if they ultimately allow the traveler to leave because they did not pose a risk.[61] Such unfettered discretion, especially in regards to seizing information on cellphones, has helped U.K. border patrol agents combat terrorism.[62] Moreover, this Act has allowed border agents to stop and examine up to 60,000 travelers each year entering the U.K.[63] Although, the exact amount of electronic devices that are searched remains unclear.[64]

Conclusively, it appears as though the issues facing border security and searches and seizures are as prevalent in the U.K. as they are in the U.S.[65] However, even though terrorist threats are as real at American borders as they are at those of the U.K., the U.S. has not followed the path of the U.K. in affording border agents uniform discretion. This has caused ambiguity since, although they work for the same agency, border agents must act differently depending upon which Circuit they work in. It is clear, from the abundance of cases discussed and the need for border security, that U.S. border agents need a uniform standard to abide by, so that there is no confusion.

The best course of action for our border agents and border security would be for the Supreme Court to finally decide this issue. The Course should enact a reasonable suspicion standard for device searches at the border and give border agents the discretion that U.K. border agents have at the border, allowing them to search electronic devices when there is fear of terrorism.[66]

Due to their similarities, the U.S. should also afford its border agents the discretion that the U.K. has afforded its border agents, in allowing them to halt travelers entering the borders to search their electronic devices to determine whether the traveler poses a terrorist threat.[67] The legal systems of the two countries are similar, the threats the two countries face are similar, and because our other laws are also similar, it would be most helpful to the security of our country and its borders to follow the example set by the U.K.[68] Thus, when the Supreme Court inevitably faces the task of setting a standard for searches of electronic devices at the border, it should allow a specific exception to the standard in which the border agents have the discretion to stop travelers and search their electronic devices to determine whether they pose a terrorist threat,[69] or to determine whether they have committed terrorism or have been involved in the preparation or instigation of it.[70]