In the U.S., we’re quite proud of the Fourth Amendment, which protects us from unreasonable searches and seizures, but are we always able to invoke those rights of protection when it comes to searches and confiscation of our electronic devices? The short answer here is that invoking your Fourth Amendment rights is always encouraged, but it might not always be honored, especially at the border and airports. If that doesn’t sound like a clear answer, that’s because it’s not. There are several factors that go into protecting your devices and your private information they hold. Let’s take a high-level look at that.
Why should I care?
You may think you’re immune to unwarranted searches and seizures, but the sad truth is that anyone carrying cell phones or laptops across the border or through the airport is at risk to have their personal items searched and possibly confiscated. You also may be wondering how often those types of searches even occur, and you’ll probably be as shocked as I was to learn that Customs and Border Protection (“CBP”) performed over 40,000 searches of cell phones and laptops in 2019. With our devices tracking our every move, habit, and some may even say our every thought, it’s no wonder why the numbers of these types of searches continue to climb. Our electronic devices are ripe with information that legal enforcement officers would love to see, and they readily and warrantlessly do it, whether you’re a U.S. citizen or not.
Wait, how can this be?
The government has long maintained that our Fourth Amendment protections against warrantless searches hold no power at the border, but that doesn’t mean we’ve all accepted that as the end-all, be-all truth. In fact, there are several recent cases that put unlawful searches to test, including Riley v California, a Supreme Court case in which the Court unanimously determined that the warrantless search and seizure of digital contents of a cell phone during an arrest is unconstitutional. While that sounds like a clear case of “no warrant, no phone,” there’s something referred to as border search exception, which claims exception to that ruling at border crossings due to a heightened need for security and high demand to search for contraband, even if there is no reasonable suspicion of nefarious activity. That doesn’t mean you have to accept that practice as part and parcel of border officials working to make the U.S. a safer place.
So what can I do to protect my private information on my devices?
As the courts continue to argue this far-from-settled issue, I can offer you a short answer to the initial question of whether or not a CBP officer can search and seize your electronic devices without a warrant or reasonable suspicion: sadly, yes. If you ever find yourself in such a situation, you could and should assert your Fourth Amendment rights of protection from unlawful searches and ask what the reasonable suspicion is for the search. While they’ll likely still search your devices if they’re so determined, you’ve established your rights and set yourself up for success in any lawsuit you file to reclaim your property.
I understand that those options, or lack thereof, are not very comforting, especially when you’ve not done anything wrong, or even if you have. It’s quite controversial, and we hope the courts will definitively sort this out with the right decision on those unlawful border searches. Until then, if you experience any search issues, criminal violations, or immigration needs, and you need an expert to handle those, please call us here at Peek & Toland. We’d love to help.