EFF, joined by ACLU, filed an amicus brief in the U.S. Court of Appeals for the Seventh Circuit arguing that border agents need a probable cause warrant before searching personal electronic devices like cell phones and laptops.

We filed our brief in a criminal case involving Donald Wanjiku, who, in June 2015, landed at Chicago’s O’Hare International Airport after returning from a trip to the Philippines. Without getting a warrant from a judge that was based on probable cause of criminality, border agents searched Wanjiku’s cell phone manually—using their hands to navigate the phone’s interface; and forensically—using external software to search the phone’s files. Border agents also forensically searched Wanjiku’s laptop and external hard drive. He was ultimately charged with transporting child pornography.

Wanjiku asked the district court in U.S. v. Wanjiku to suppress evidence obtained from the warrantless border searches of his electronic devices, but the judge denied his motion. He then appealed to the Seventh Circuit.

In our amicus brief, we argued that the Supreme Court’s decision in Riley v. California (2014) supports the conclusion that border agents need a warrant before searching electronic devices because of the unprecedented and significant privacy interests travelers have in their digital data. In Riley, the Supreme Court followed similar reasoning and held that police must obtain a warrant to search the cell phone of an arrestee.

We also cited the Supreme Court’s recent decision in U.S. v. Carpenter (2018) holding that the government needs a warrant to obtain historical cell phone location information. In our amicus brief, we explained that historical location information can be obtained from a border search of a cell phone.

Citing Riley, the Supreme Court in Carpenter stated, “When confronting new concerns wrought by digital technology, this Court has been careful not to uncritically extend existing precedents.” Similarly, EFF’s longstanding position is that the traditional border search exception to the Fourth Amendment, which generally permits warrantless and suspicionless “routine” searches of items travelers carry across the border (like luggage), should not extend to personal electronic devices. A reasonable exception in one context isn’t necessarily appropriate in another.

While the district court judge denied Wanjiku’s motion to suppress, she did not do so because she agreed with the government’s argument that electronic devices fall within the border search exception. Rather she stated that she was “inclined to agree with defendant” that suspicionless border searches of electronic devices violate the Fourth Amendment. The judge also stated that she:

agree[s] that the [Supreme] Court’s decision in Riley rejects the government’s claim that searches of cell phones or other electronic devices are analytically equivalent to searches of physical items, and may indeed suggest the Court’s willingness to reevaluate, in the age of modern cell phones, whether the balance of interests should continue to be ‘struck much more favorably to the Government at the border’ where digital searches are concerned….

Unfortunately, the district court judge concluded “that this is not the appropriate case in which to wrestle these difficult issues to the ground.” She denied Wanjiku’s motion to suppress because she found that the border agents had reasonable suspicion—a lower standard than probable cause—that Wanjiku was involved in criminal activity. She declined to go further in her analysis given that the “Seventh Circuit has not defined the level of suspicion required to conduct an electronics search at the border.”

We hope the Seventh Circuit takes this opportunity to apply the highest level of Fourth Amendment protection to border searches of electronic devices—a probable cause warrant. We’re also optimistic that we can win such a ruling in the First Circuit in our civil case with ACLU against the U.S. Department of Homeland Security, Alasaad v. Nielsen.

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