The U.S. Court of Appeals for the Eleventh Circuit got it wrong—again—ruling last week in U.S. v. Touset that border agents may forensically search, without any suspicion of wrongdoing, travelers’ electronic devices.

The Eleventh Circuit ruled in March in U.S. v. Vergara that neither a warrant nor probable cause is ever required for a border search, including of an electronic device. Because the defendant in that case did not press the issue of whether a lesser standard—reasonable suspicion—should at least be required for a forensic device search, that court didn’t address the issue.

The rulings in the two cases came from two different three-judge panels. The silver lining is that one judge in Vergara took the position that a probable cause warrant should be required for forensic device searches at the border.

EFF has long argued that the Supreme Court’s decision in Riley v. California (2014) supports the conclusion that border agents need a warrant, based on probable cause of criminality, 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.

As with Vergara, the Touset court couldn’t have been more wrong. The Eleventh Circuit once again failed to acknowledge the vast amounts and kinds of sensitive data that our cell phones, laptops, and other electronic devices contain. The Touset court dismissed the defendant’s Fourth Amendment argument because electronic devices are merely “personal property.” The court focused on U.S. v. Flores-Montano (2004) where the Supreme Court held that the removal, disassembly, and reassembly of a gas tank (which ended up containing marijuana) by border agents did not require any individualized suspicion of criminal activity.

However, the Supreme Court in that same case expressly left open the possibility that some suspicionless searches at the border, even of property, might be constitutionally problematic.

The one redeeming aspect of the Touset decision is that the court called on Congress to act, reminding legislators and the public at large that “nothing prevents Congress from enacting laws that provide greater protection than the Fourth Amendment requires.” While we argue that the Fourth Amendment requires the highest level of constitutional protection available—a probable cause warrant—for device searches at the border, we agree that as long as the courts fail to uniformly protect traveler privacy, Congress has an opportunity to do so. That’s why we’ve endorsed the Protecting Data at the Border Act (S. 823 and H.R. 1899).

Both Eleventh Circuit cases, like others concerning warrantless border searches of electronic devices, involve criminal defendants who were prosecuted based on evidence found on their devices. We’re hopeful that our civil case, Alasaad v. Nielsen, will provide a fresh context for the courts to acknowledge the fact that millions of innocent people cross the U.S. border every year and they deserve the maximum protection for privacy that the U.S. Constitution provides.

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