The U.S. Court of Appeals for the Ninth Circuit issued a new ruling in U.S. v. Cano [.pdf] that offers greater privacy protection for people crossing the border with their electronic devices, but it doesn’t go as far as we sought in our amicus brief.

Cano had attempted to cross the border near San Diego when cocaine was found in his car. He was arrested at the port of entry and border agents manually and forensically searched his cell phone. He was prosecuted for importing illegal drugs and moved to suppress the evidence found on his phone. The Ninth Circuit held that the searches of his cell phone violated the Fourth Amendment and vacated his conviction.

In U.S. v. Cotterman (2013), the Ninth Circuit had circumscribed the border search exception as it applies to electronic devices. The court held that the Fourth Amendment required border agents to have had reasonable suspicion—a standard between no suspicion and probable cause—before they conducted a forensic search, aided by sophisticated software, of the defendant’s laptop. Unfortunately, the Cotterman court also held that a manual search of a laptop is “routine” and so the border search exception applies: no warrant or any suspicion of wrongdoing is needed.

In Cano, it was disappointing though not surprising that the three-judge panel reaffirmed Cotterman’s en banc rule and held that a manual search of a cell phone requires no suspicion while a forensic search requires reasonable suspicion. We argued in our amicus brief that the Ninth Circuit should revisit this issue and require a probable cause warrant for all border device searches, in light of the Supreme Court’s decision in Riley v. California (2014). In that watershed case, the Court acknowledged the extraordinary privacy interests people have in their cell phones, irrespective of how the devices are searched, and held that police must obtain a warrant to search the cell phone of an arrestee.

On the bright side, the Cano court further held that warrantless, suspicionless border device searches—both manual and forensic—are only permissible under the Fourth Amendment to determine whether the device contains digital contraband. The court agreed with the arguments we presented in our amicus brief that the border search exception is “narrow,” being justified by the purpose of interdicting contraband and not simply finding evidence of illegal activity. Additionally, the court held with respect to forensic searches, “We clarify Cotterman by holding that ‘reasonable suspicion’ in this context means that officials must reasonably suspect that the cell phone contains digital contraband.”

While we still believe that electronic devices should fall outside the border search exception and thus require a warrant for search, limiting the scope of all device searches under the border search exception to looking for digital contraband is a good pro-privacy rule.

The Cano court emphasized that border agents may not conduct warrantless, suspicionless border device searches “for evidence of past or future border-related crimes.” This is striking because we know from our civil case against the government, Alasaad v. Nielsen, that CBP and ICE agents do regularly conduct device searches (under the border search exception, they argue) to look for mere evidence of border-related crimes and in support of general law enforcement. The Cano rule means that border agents within the Ninth Circuit states can’t conduct broad-ranging fishing expeditions for digital data such as correspondence between the traveler and his associates, or metadata like location information. Such data might be evidence, but is not itself contraband.

It’s important to note, however, that emails and text messages are not totally off limits. The Cano court noted that child pornography may be sent via email or text message, and so border device searches for digital contraband within these kinds of cell phone data are reasonable under the Fourth Amendment.

As for Cano himself, the Ninth Circuit held that the recording of phone numbers and text messages during a manual search “had no connection whatsoever to digital contraband.” And while border agents “had reason to suspect that Cano’s cell phone would contain evidence leading to additional drugs,” the forensic search was unconstitutional because “the record does not give rise to any objectively reasonable suspicion that the digital data in the phone contained contraband.”

The Cano court also stated that “the detection-of-contraband justification” for warrantless, suspicionless border device searches “would rarely seem to apply to an electronic search of a cell phone outside the context of child pornography.” We will advocate for courts to narrowly define the “digital contraband” that, under Cano, is the outer limit of the scope of warrantless, suspicionless border device searches. We will also continue to advocate for a warrant requirement.

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