Carrying Riley Across the Border: Why Digital Device Border Searches Demand a Suspicion Standard
The border has historically occupied a structurally distinct space in American constitutional law where otherwise-consistent doctrines must accommodate the nation’s interest in regulating entry. Within Fourth Amendment jurisprudence, the border’s unusual exceptionalism permits searches to be performed without a warrant or individualized suspicion in exigent circumstances and are considered reasonable “simply by virtue of the fact that they occur at the border” [1]. Traditionally, this border search exception has been limited to the inspection of physical goods crossing the border in search of contraband [2]. The Supreme Court deemed these searches permissible both because they occurred at the threshold of national entry and because the objects of inspection, including suitcases and containers, were thought to carry limited privacy expectations relative to personal effects [3]. Thus, the border search exception has, for years, been justified by its limits, granting it a modest reputation as a relatively non-controversial tool servicing American national security.
This structure, however, has failed to truly adapt to the rise of the digital world. Unlocking a smartphone does not reveal its contents in the way opening a physical container does, nor are said contents confined to what is immediately visible. While lower courts have attempted to extend the container analogy to cellular devices to allow forensic searches under the same authority that governs physical luggage [4], the legal system still lacks a widespread, consistent answer as to how far courts should apply such an exception at the national level [5]. In this essay, I argue that forensic searches of locally stored data on digital devices at the border should require a reasonable suspicion standard because they expose a breadth and sensitivity of personal information that traditional searches of physical objects have never involved.
Border search jurisprudence has consistently connected the permissibility of warrantless inspection to the nature of the object being searched. For example, in United States v. Ramsey (1977), the Court upheld the suspicionless opening of international mail because the search targeted physical parcels and was narrowly tailored to the interception of contraband [6]. Similarly, in United States v. Flores-Montano (2004), the Court approved the suspicionless removal of a car’s gas tank at the border, reasoning that the search implicated“only property rights and lacked any affront to “dignity and privacy interests” [7]. In both cases, the Court established that the legitimacy of intrusions hinges on the specific characteristics of the item being searched and the minimal expectation of privacy associated with the container.
Because the Fourth Amendment traditionally measures the reasonableness of a search according to its context rather than its fixed location [8], the legal treatment of digital devices logically ought to reflect the functional reality of what such devices contain. The Supreme Court recognized precisely this point in Riley v. California (2014), concluding that cell phones are “not just another technological convenience” but what Chief Justice Roberts characterized as “a digital record of nearly every aspect of [their owners’] lives” [9]. The Court further classified digital devices as unique “in both a quantitative and a qualitative sense” from other objects because they consolidate an immense range of information, ranging from photos and texts to location history and medical records, within a single portal [10]. It stands to reason that the traditional categorical justifications associated with Fourth Amendment jurisprudence ought to be reassessed when the object of a search grants the aforementioned immediate access to the most intimate details of a person’s life.
Although treating smartphones as extensions of suitcases arguably misrepresents the breadth of digital content, many courts currently employ the container approach to Fourth Amendment jurisprudence in lieu of a more cohesive doctrine recognizing the border search exception by either name or functionality. In United States v. Touset (2018), for example, the Eleventh Circuit upheld suspicionless forensic searches of electronic devices at the border, stating that such devices do not warrant categorical protection beyond what the border exception already permits [11]. Touset’s reasoning, however, fails to fully reconcile with the nature of the object reasoning employed in Riley, where the Supreme Court rejected the container analogy on the basis that phones implicate far more extensive privacy interests than other physical objects. The Court based its reasoning in the nature of the device as opposed to the arrest context, emphasizing that exceptions originally intended for suitcases and other low-privacy containers cannot possibly be directly transposed onto digital devices capable of storing extremely personal information without heavy modification. The Eleventh Circuit’s disengagement with the nature of the object focus in Riley suggests that lower courts are currently struggling to functionalize the border search exception without clearcut instructions, even if they themselves acknowledge the incompatibility of the suitcase approach with digital challenges.
Opponents of this argument might contend that digital devices fall within the bounds of the border exception simply because they cross the border at all. However, the overwhelming majority of data accessible on a smartphone does not physically cross the border with the user. A large proportion of cell phone data is not stored locally on the device itself due to the frequent use of cloud-based applications [12]. Instead of travelling with a user’s device like locally-stored files, cloud data resides in remote servers housed in arbitrary locations, rendering any access to it at the border disconnected entirely from the physical action of border crossing. Even if one assumes arguendo that digital devices can be treated as containers in a border setting, the unconstitutional manner of search employed at the border still renders forensic inspection outside of the Fourth Amendment’s scope. Notably, the Court has historically drawn a distinction between “routine” and “non-routine” border searches, with the latter requiring some measure of suspicion. In United States v. Montoya de Hernandez (1985), for instance, the Court required reasonable suspicion to detain a traveler for sixteen hours and perform a medical examination to detect internally smuggled narcotics [13]. The idea that greater intrusions require greater justification, known as scaling, remains a foundational element of border search jurisprudence.
Even if the border search exception was grounded predominantly in the government’s interest in securing a safe national border by preventing customs violations, that interest alone does not enable the suspicionless forensic searches of digital devices. Fourth Amendment doctrine has consistently conditioned the permissibility of searches based on their scope and intensity of intrusion and has never authorized suspicionless searches based on speculative investigatory value alone in normative contexts. Although the border context certainly allows for certain emergency departures from ordinary Fourth Amendment doctrine, it certainly does not justify suspending the Fourth Amendment’s core constraint against suspicionless searches of extraordinary scope. Additionally, the nature of digital devices complicates any argument in favor of the current nature of the border search exception. Unlike suitcases, which are designed to carry physical items across jurisdictional boundaries, devices like smartphones retain vast quantities of personal data far more extensive than anything a traveler knowingly brings in their luggage. As legal scholar Paul Ohm observes, modern digital systems already “track, store, and share the words, movements, and even the thoughts” of users [14]. Treating such devices merely as potential vehicles for contraband knowingly minimizes the omnipresent role they occupy in modern life as well as the glaring constitutional stakes of their search.
Though lower courts are largely in agreement on the necessity of digital searches at the border in order to further legitimate customs enforcement interests, they have struggled to reach a consensus as to how such interests can coexist with increasingly intrusive search methodology. Many courts have tried to make sense of this tension by drawing lines between on-the-spot visual examinations, known as manual searches, and intensive software reviews, known as forensic searches. In United States v. Cano (2019), for example, the Ninth Circuit concluded that only forensic searches necessitated a reasonable suspicion standard due to their tendency for “qualitatively different intrusion” [15]. Indeed, the expanded access that forensic tools provide into an individual’s private life goes far beyond the simple text message and camera roll reviews that are typical in manual searches. Forensic tools such as the data extractor Cellebrite or the phone-unlocking platform Magnet Graykey, for instance, enable investigators to reconstruct deleted content, extract metadata, and generate comprehensive behavioral profiles from locally stored data [16]. Searches utilizing such technologies clearly stray from the regular scope of routine inspection as they access immense quantities of personal data, including health information and historical location records, far exceeding the limited ‘exigent’ conditions that the border search exception permits. Even in light of the government’s asserted enforcement interests, suspicionless searches of such an immense scope verge on the very definition of unlawful investigation which the Fourth Amendment was intended to prevent.
Instituting a reasonable suspicion standard for border searches of digital devices is further justified by Fourth Amendment judicial precedent. In Terry v. Ohio (1968), the Court ruled that police officers can perform brief “stop and frisks” on individuals who they reasonably suspected to be involved in an imminent crime, thus identifying reasonable suspicion, not probable cause, as the minimum evidentiary threshold necessary to ensure that a search is “justified at its inception” [17]. Extending the logic of Terry to the application of reasonable suspicion at the border preserves the border search exception by reconciling the government’s legitimate interest in national security with the constitutional necessity for searches to remain predicated on an articulable basis. Recognizing reasonable suspicion at the border, in this sense, simply reflects the Court’s long-held view that the intensity of intrusion must remain proportionate to the strength of search justification, especially at the nation’s threshold.
Amidst rising inconsistencies between categorical frameworks built for the physical world and the structural realities of digital life, the issue of forensic digital searches further questions whether existing Fourth Amendment doctrine can hold its own in the rapidly evolving internet space. Because smartphones are more than simply incidental to modern existence and serve as unavoidable receptacles of identity and memory, treating them as routine objects of suspicionless search willingly allows the border to become a site of constitutional exceptionalism, instead of formally modifying jurisprudential standards to accommodate the digital era.
The border search exception’s entanglement with American technologization is additionally enhanced by the politicized nature of the border itself, a space where nationalism, national security, and anti-immigration sentiments have continuously justified turning a blind eye to Fourth Amendment protections. As the border increasingly serves as a testing ground for new surveillance technologies, it also becomes the birthplace of a dangerous level of legal exceptionalism. A risk of diminished digital privacy at the border is, of course, that what is first tolerated at the margins will eventually be imported into the interior. The Fourth Amendment’s ability to constrain state power in the digital age depends on preventing narrow exceptions like the border search doctrine from expanding unchecked into default rules for digital searches. Now more than ever, the container standard must be clarified as it pertains to technology. If constitutional doctrine is to keep pace with the realities of the digital world, then we have no choice but to carry Riley across the border.
Footnotes
[1] United States v. Ramsey, 431 U.S. 606, 616 (1977). “[S]earches made at the border... are reasonable simply by virtue of the fact that they occur at the border.”
[2] United States v. Flores-Montano, 541 U.S. 149, 152–53 (2004), upholding suspicionless gas tank inspection because it involved property, not dignity or privacy.
[3] Ibid. at 152.
[4] Thomas K. Clancy, The Role of Individualized Suspicion in Assessing the Reasonableness of Searches and Seizures, 25 U. Mem. L. Rev. 483, 545–47 (1995), distinguishing the regulatory nature of border searches from general law enforcement searches.
[5] United States v. Touset, 890 F.3d 1227, 1233–35 (11th Cir. 2018).
[6] Ramsey, 431 U.S. 606, 616 (1977).
[7] Flores-Montano, 541 U.S. 152 (2004).
[8] United States v. Montoya de Hernandez, 473 U.S. 531, 537 (1985). “The Fourth Amendment commands that searches and seizures be reasonable. What is reasonable depends upon all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself.”
[9] Riley v. California, 573 U.S. 373, 393–97 (2014).
[10] Ibid. at 394. The Court furthers that, “[c]ell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person. The term ‘cell phone’ is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.” Thus, just as officers may not enter a home in hopes of discovering incriminating evidence visible from within, they may not search through any part of a cell phone without justification, even if certain contents like call logs might seem less sensitive than, say, an individual browser history.
[11] Touset, 890 F.3d at 1233–35. See also Recent Case, United States v. Touset, 890 F.3d 1227 (11th Cir. 2018), 132 Harv. L. Rev. 1112, 1116 (2019), which claims that “[t]he Touset Panel correctly invoked two Founding-era customs statutes in support of its conclusion that border searches of property do not require suspicion.”
[12] George Grispos, William Bradley Glisson, and Tim Storer, Recovering Residual Forensic Data from Smartphone Interactions with Cloud Storage Providers, arXiv (2015). See also George Grispos, William Bradley Glisson, and Tim Storer, Using Smartphones as a Proxy for Forensic Evidence contained in Cloud Storage Services, arXiv (2013).
[13] Montoya de Hernandez, 473 U.S. at 540, wherein the Court introduces the distinction between routine and non-routine searches and, thus, the notion that greater intrusions at the border require greater justification.
[14] Paul Ohm, The Fourth Amendment in a World Without Privacy, 81 Miss. L.J. 1309, 1310 (2012).
[15] Cano, 934 F.3d 1002, 1020.
[16] Ibid. at 1011–12, describing forensic tools and data extraction capabilities.
[17] Terry v. Ohio, 392 U.S. 1, 20 (1968).