In Alasaad, the American Civil Liberties Union and the Electronic Frontier Foundation are seeking an injunction on behalf of 10 U.S. citizens and one lawful permanent resident whose cellphones were searched by U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement in 2017. The plaintiffs live in states across the continental U.S. and have diverse professions, including a limousine driver, a professor, a NASA engineer and a journalist.
Some plaintiffs were subjected to a search of their cellphones on more than one entry. Some had their cellphones held for months at a time. All of these searches were executed without any basis, and CBP and ICE maintain that they do not require a warrant, probable cause or even reasonable suspicion that laws are being broken due to the special governmental interests of security at the border.
Indeed, courts have held that the U.S. border provides a unique environment that limits the applicability of traditional Fourth Amendment analysis. The Fourth Amendment provides that people are to be "secure in their persons, houses, papers, and effects, against unreasonable searches and seizures…" and that "probable cause" is required for a warrant to be issued describing "the place to be searched" and the "persons or things to be seized."
As noted in Riley v. California, the U.S. Supreme Court affirmed that the "ultimate touchstone of the Fourth Amendment is 'reasonable'" and, "[i]n the absence of a warrant, a search is reasonable only if it falls within a specific exception to the warrant requirement." In determining whether a search falls within a specific exception, the Supreme Court issues a balancing test, which weighs, "on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests."
In Alasaad, CBP and ICE are arguing that the long-held exception to the warrant requirement, the border-search exception, applies to cellphones as well as personal effects. Citing to United States v. Montoya de Hernandez, the U.S. government argued in its summary judgment motion that the Supreme Court has never required any warrant or probable cause in conducting a border search, and only required reasonable suspicion in the prolonged detention of a person who was suspected of smuggling drugs by swallowing balloons of heroin. In its summary judgment motion, the U.S. government argued that searching and retaining cellphones without a warrant and without reasonable suspicion serves the compelling interests of national security and territorial integrity, stopping contraband from entering the U.S., and finding evidence of violations of federal law.
Additionally, the U.S. government argues that travelers who leave and enter the U.S. border have a significantly reduced expectation of privacy and that requiring a warrant for every search would compromise national security. CBP and ICE note that over 1 million people cross the border each day, and based on the sheer volume of people and merchandise passing through the border, CBP has a limited amount of time and lack of advance information on travelers to make decisions about contraband, inadmissibility of people and other issues involving national security.
However, while phrases such as "national security" and the interest of stopping criminal activity may provide pause, historically, border searches were a means to collect duty fees and prevent contraband from entering the country based on its ability to dilute the value of wares. More importantly, the Supreme Court recently held in Riley that cellphones "differ in both a quantitative and qualitative sense from other objects that might be kept on an arrestee's person," and due to the nature of private information that a person stores on his or her cellphone, a search would require a warrant.
The Supreme Court noted in Riley that "more than 90% of American adults" own a cellphone that keeps "a digital record of nearly every aspect of their lives — from the mundane to the intimate." The standard smartphone has the capacity to hold "millions of pages of text, thousands of pictures, or hundreds of videos." The amount of storage offered in a cellphone is more than what was imagined upon a search of a person, which "was limited by physical realities and tended as a general matter to constitute only a narrow intrusion of privacy." While Riley involved the exception of a search incident to arrest rather than the border-search exception, the Supreme Court in Riley noted that "when 'privacy-related concerns are weighty enough'" a search may require a warrant, even if a person's expectations of privacy are reduced.
In considering the government's interests in Riley, the Supreme Court rejected that the rationale underlying the search incident to arrest doctrine was sufficiently tethered to the government's ability to search cellphones without a warrant. Specifically, the Supreme Court noted that the two rationales that provided the exception to a search warrant — safety of the arresting officer and destruction of evidence — did not apply or could be accounted for on a case-by-case basis based on exigent circumstances.
Similarly, in Alasaad, the ACLU argues that warrantless, suspicionless electronic device searches are not connected to the admissibility of people and goods. While CBP and ICE cite to a number of examples of how border searches led to convictions for criminal acts, including the possession of child pornography, the Supreme Court in Riley noted that the Fourth Amendment was created to prevent "an unrestrained search for evidence of criminal activity."
Courts have been split since the entrance of Riley on the applicability of the border-search exception and cellphones. In United States v. Kim, the U.S. District Court for the District of Columbia weighed the "totality of the circumstances" test articulated in Riley and held that the imaging and search of a laptop without any limits in scope or analysis violated the Fourth Amendment.
In United States v. Kolsuz, the U.S. Court of Appeals for the Fourth Circuit held that a border search of a cellphone required reasonable suspicion in order for a forensic search to be implemented but did not decide whether probable cause or reasonable suspicion was required in this context. In United States v. Molina-Isidoro, the U.S. Court of Appeals for the Fifth Circuit did not indicate whether probable cause or reasonable suspicion was required, but did indicate that, since the search in this case was supported by probable case, the nonforensic search of the defendant's cellphone was justified. Finally, in United States v. Vergara, in a divided opinion, the U.S. Court of Appeals for the Eleventh Circuit held that border searches never require probable cause or a warrant and only require reasonable suspicion for an invasive bodily search.
The decision in Alasaad, which will most likely be heard by the U.S. Court of Appeals for the First Circuit regardless of the decision at the district court level, will further illustrate the difference in federal courts applying Riley to the border-search exception. Assuming no acts by Congress on the issue, the Supreme Court may be tasked with providing the ultimate standard on how far technology and our Constitution will go.
The decision will have a far-reaching impact on our society; according to the ACLU's motion for summary judgment, in fiscal year 2018, CBP searched 33,295 devices, a six-fold increase from fiscal year 2012. Under its current policy, CBP can continue to search, retain and store information from cellphones without any basis or limit in scope. As of this date, one of the plaintiffs in Alasaad still has not had his cellphone returned. Until a final decision is rendered, travelers will need to ascertain how and if they can limit their electronic data to protect their privacy at the border.
Sharon Barney is a partner at Leech Tishman Fuscaldo & Lampl LLC.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
 Case number 1:17-cv-11730
 573 U.S. 373 (2014).
 Id. at 381-382, citing Brigham City v. Stuart , 547 U.S. 398, 403 (2006).
 Id. at 382, citing Kentucky v. King , 563 U.S. 452 (2011) (slip op., at 5-6).
 Id. at 385, citing Wyoming v. Houghton , 526 U.S. 295, 300 (1999).
 473 U.S. 531 (1985).
 See Laura K. Donohue, Customs, Immigration, and Rights: Constitutional Limits on Electronic Border Searches, 128 Yale L.J. F. 961, 972-977 (2019), for a summary of the historical context of border searches and our nation's founding.
 Riley v. California , 573 U.S. 373 at 393.
 Id. at 373.
 Id. at 395.
 Id. at 394.
 Id. at 393.
 Id. at 392.
 Id. at 403.
 103 F. Supp. 3d 32, 54 (D.D.C. 2015).
 890 F.3d 133 (4th Cir. 2018).
 884 F.3d 287 (5th Cir. 2018).
 884 F.3d 1309 (11th Cir. 2018).