A recent federal appeals court decision shows that at least one judge thinks border agents should get a warrant before conducting forensic searches of travelers’ cell phones.
Although the majority of the three-judge panel for the U.S. Court of Appeals for the Eleventh Circuit in U.S. v. Vergara found that border agents did not need a warrant, EFF is encouraged by the dissent’s forceful conclusion that the significant privacy interests people have in their electronic devices require courts to rethink the border search exception to the Fourth Amendment’s warrant requirement.
Vergara had returned to Florida after a vacation in Mexico and was selected by U.S. Customs and Border Protection (CBP) for secondary screening. Border agents performed what is called a “forensic search” of Vergara’s cell phone—the agents used an external device and software to analyze the phone’s data—and found child pornography. Vergara moved to suppress this evidence, arguing that the forensic search violated the Fourth Amendment because it was conducted without a probable cause warrant from a judge.
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.