Second Circuit Authorizes “Suspicionless” Border Searches of Travelers’ Digital Devices
In Short:
The Background: In its recent decision, United States v. Alisigwe, the United States Court of Appeals for the Second Circuit determined that officials at the U.S. border can conduct suspicionless searches of travelers' digital devices.
The Result: The Second Circuit's decision rejects previous holdings of certain New York federal district courts that required border officials to have a warrant before searching a traveler's devices. The decision also deepens a split among federal circuit courts of appeal regarding what Fourth Amendment protections, if any, travelers have over their digital devices when at the U.S. border.
Looking Ahead: Notwithstanding its holding, the Second Circuit expressly left open the question of whether certain particularly invasive searches of travelers' devices could still require reasonable suspicion, and other courts have reached different answers on this question. International travelers should prepare for the possibility that officials at U.S. airports may seize, scroll through, and forensically search their devices.
Discussion
Ordinarily, under the Fourth Amendment, government officials must have a warrant and probable cause to search an individual's belongings, absent the individual's consent. But when officials are conducting a "routine" search of an individual at the U.S. border, they can conduct the search without having any suspicion of criminal activity. In United States v. Alisigwe, the Second Circuit addressed whether this "border-search exception" enables officials to conduct suspicionless searches of travelers' digital devices at the border.
The Court's Decision
In its September 17 decision, the Second Circuit held that "the search of a traveler's property at the border—including a cellphone—is a routine search that the government may conduct without suspicion." The court explained that such a search is routine because it furthers the government's interest in "preventing the entry of unwanted persons and effects" and because it does not intrude on an individual's "privacy interests" like an invasive body-search could. Notably, however, the court focused on "manual" searches of digital devices (like scrolling through a traveler's phone) and expressly declined to decide whether "sophisticated forensic" searches of digital devices would also qualify as routine.
Effect on Fourth Amendment Law
The Second Circuit's decision rejects the protective rules recently adopted by certain New York federal district courts that required officials to have a warrant before searching an individual's phone, even at the border. More broadly, the court's decision deepens the split among federal circuit courts of appeal regarding the constitutional privacy protections that travelers have over their electronic devices at the U.S. border. The United States Court of Appeals for the Seventh Circuit, for example, has held that border officials can briefly scroll through the traveler's devices for any reason and without any suspicion, as the Second Circuit now expressly allows. But the United State Court of Appeals for the Ninth Circuit allows border officials to conduct a warrantless search of the traveler's devices only to search for "contraband." The Supreme Court has yet to consider the question.
Open Questions
The Second Circuit's decision leaves open the possibility that some border searches of digital devices could still be "nonroutine" and require reasonable suspicion if the searches involve the use of sophisticated forensic technology. As the Second Circuit recognized, some courts have embraced such a rule. But not all courts have done so; and at least one circuit court, the United States Court of Appeals for the Eleventh Circuit, has held that officials at the border need not have reasonable suspicion to conduct forensic searches of travelers' devices, however intrusive those searches may be.
U.S. Customs and Border Protection ("CBP"), for its part, has its own internal directives for when CBP officials may conduct an "advanced search," which CBP defines as "any search in which an officer connects equipment, wired or wireless, to copy and/or analyze the contents of an electronic device." According to CBP's directives, to conduct an advanced search of a traveler's devices, CBP officials must have reasonable suspicion of certain unlawful activity (absent a national security concern). But those directives do not create any enforceable rights for travelers. Thus, in the Second Circuit and several other jurisdictions, it remains an open question whether travelers have any legal protection against intrusive, forensic searches of their digital devices.
Implications for Travelers
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Broadly, travelers at the U.S. border should recognize that different jurisdictions within the United States grant travelers different privacy protections over their electronic devices, and that as a general rule, officials in any jurisdiction may at least scroll through travelers' devices even if the officials lack suspicion of wrongdoing.
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As a result, international business travelers should plan for the possibility that U.S. officials may seize, scroll through, and forensically search their devices at border sites. Before traveling, international business travelers should consider the information that may be accessible on their mobile devices, tablets, or laptop computers.
Four Key Takeaways
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In Alisigwe, the Second Circuit held that the border-search exception enables officials to conduct suspicionless manual searches of travelers' digital devices. The court reasoned that such searches further the government's interest in "preventing the entry of unwanted persons and effects" and do not substantially infringe on travelers' privacy interests.
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The Second Circuit's decision reduces the privacy protections that travelers may have over their digital devices when passing through border sites—particularly within the circuit, including New York City airports. Previously, certain New York federal district courts required officials to have a warrant to search travelers' digital devices. The Second Circuit rejected those district court decisions.
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Federal circuit courts have differing views regarding the circumstances under which officials at the U.S. border may conduct suspicionless searches of travelers' devices. Although CBP directives generally require CBP officials to have reasonable suspicion before conducting advanced searches of travelers' devices, those directives do not create enforceable rights. Thus, travelers' privacy rights could depend, in part, on where the travelers enter the United States.
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As a practical matter, international travelers planning to travel to the United States should carefully consider the data and documents they intend to travel with and anticipate the possibility that officials may seize, scroll through, and forensically search their devices.
