The 11th Circuit Court of Appeals Recently Decided an Important Privacy Right for Border Searches – And it’s Not Good.

The Fourth Amendment to the Constitution of the United States guarantees “the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.” “But searches at the border, from before the adoption of the Fourth Amendment, have been considered to be reasonable . . . [simply because] the person or item in question had entered into our country from the outside.”[1]  Indeed, United States border searches “never require probable cause,” and only “require [the lower standard of] reasonable suspicion . . . for [even] highly intrusive searches of a person’s body such as a strip search or x-ray.”[2]  Based on this case law, the 11th Circuit in a 2-1 decision recently concluded that a computer-assisted forensic search of cell phones at the border “required neither a warrant nor probable cause.”[3]

Riley v. California

However, in 2014, the Supreme Court decided the case of Riley v. California.[4]  In Riley, the Supreme Court held that probable cause and warrants are normally required to manually search cell phones following an arrest.[5]  Nevertheless, the 11th Circuit held in Vergara[6] that Riley is not applicable to border searches because, as noted above, United States border searches “never require probable cause.”[7]  While this holding is unsurprising and fairly straight-forward, the dissent in Vergara presents a nuanced and compelling argument for why Riley would apply to border searches, despite much case law suggesting a contrary result.

A Different Perspective

As discussed above, Riley involved the manual search of a cell phone while Vergara involved the forensic search of cell phones.  This is an important distinction.  In a manual search, even when authorized by a search warrant, law enforcement is limited by what they can see and find with their own hands and eyes. However, a forensic search of cell phones is “expert’s work . . . performed by a trained analyst at a government forensics laboratory.”[8]  Because of this, the amount of data that can be obtained from a forensic search is substantially greater than a manual search.  This increased dtata can include the ability to “unlock[] password-protected files, restor[e] deleted material, and retriev[e] images viewed on websites.”[9]  Such power is an enormous invasion because “[a]s the Supreme Court made clear in Riley, cell phones are fundamentally different from any object traditionally subject to government search at the border.”[10]  Indeed, in Riley, the Supreme Court noted that “[t]he term ‘cell phone’ is itself misleading [because cell phones]  . . . . could just as easily be called cameras, video players, rolodexes calendars, tape recorders, libraries, diaries, albums, televisions, maps or newspapers.”[11]  Indeed, “[u]nlike . . . physical objects, cell phones have the capacity to store millions of pages of text, thousands of pictures, or hundreds of videos.”[12]  Additionally as the dissent in Vergara rightly points out,

“[b]eyond these quantitative differences, the data cell phones contain is also qualitatively different from the information gleaned by searching luggage, living quarters, and even an individual’s person.  A cell phone’s internet search history can reveal an individual’s private interests or concerns—perhaps a search for certain symptoms of disease, coupled with frequent visits to WebMD.  Cell phone data also may reveal where a person has been.  And cell phone applications as well as data offer a range of information on such private and personal topics as addiction, religious practices, pregnancy, personal finances, and romance.”[13]

The Dissent’s Main Arguments

Because of this, the dissent makes three important points.  First,

“[a]lthough the government’s interest at the border is undoubtedly greater than it was in searching the arrestees in Riley, Vergara’s privacy interests are greater here, too. In Riley, the officers [manually] searched the arrestees’ cell phones by viewing videos, reading text messages, and scrolling call logs. Here, Vergara’s cell phones were forensically searched.”[14]

Next,

“the border search exception to the warrant requirement rests not only on the heightened government interests . . . but also on travelers’ reduced privacy interests at the border. But a diminished privacy interest does not mean that the Fourth Amendment falls out of the picture entirely.  Instead, when the privacy-related concerns are weighty enough, as they are in a forensic search of a cell phone, the search may require a warrant, notwithstanding the diminished expectations of privacy.”[15]

Finally,

“[a]pplying the Supreme Court’s reasoning in Riley, the rationales underlying the border search exception lose force when applied to forensic cell phone searches.  The border search exception is rooted in the government’s interest in controlling who and what may enter the country.  But cell phones do not contain the physical contraband that border searches traditionally have prevented from crossing the border, whether that be communicable diseases, narcotics, or explosives.  And cell phone searches are ill-suited to prevent the type of contraband that may be present on a cell phone from entering into the United States.  Unlike physical contraband, electronic contraband is borderless and can be accessed and viewed in the United States without ever having crossed a physical border.”[16]

Because of this, the dissent concludes that the wholesale determination that Riley does not apply to border searches is in error.  Importantly, “[n]either the Supreme Court nor any federal circuit court has determined the level of suspicion required to justify the forensic search of a cell phone at the border.”[17]  It will be interesting to see if the Supreme Court picks up this case or waits to see if a split occurs among the Circuits.

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[1] United States v. Vergara, 884 F.3d 1309, 1312 (11th Cir. 2018) (internal citations and quotations omitted).

[2] Id., citing United States v. Ramsey, 431 U.S. 606, 619 (1977); United States v. Alfaro-Moncada, 607 F.3d 720, 729 (11th Cir. 2010).

[3] Vergara, 884 F.3d at 1312.

[4] 134 S. Ct. 2473 (2014).

[5] 134 S.Ct. at 2485 (“We therefore decline to extend Robinson to searches of data on cell phones, and hold instead that officers must generally secure a warrant before conducting such a search.”).

[6] 884 F.3d at 1312.

[7] Ramsey, 431 U.S. at 619.

[8] Vergara, 884 F.3d at 1316 (Pryor, J., dissenting).

[9] Vergara, 884 F.3d at 1316 (Pryor, J., dissenting).

[10] Vergara, 884 F.3d at 1315 (Pryor, J., dissenting).

[11] Riley, 134 S. Ct. at 2489

[12] Vergara, 884 F.3d at 1315 (Pryor, J., dissenting) (internal quotes omitted).

[13] Vergara, 884 F.3d at 1315 (Pryor, J., dissenting) (internal quotes omitted).

[14] Vergara, 884 F.3d at 1316 (Pryor, J., dissenting) (internal quotations and citations omitted).

[15] Vergara, 884 F.3d at 1316 (Pryor, J., dissenting) (internal quotations and citations omitted).

[16] Vergara, 884 F.3d at 1317 (Pryor, J., dissenting) (internal quotations and citations omitted).

[17] Vergara, 884 F.3d at 1315 (Pryor, J., dissenting).


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