Legal Sidebari

Do Warrantless Searches of Electronic Devices
at the Border Violate the Fourth Amendment?
December 20, 2019
The Fourth Amendment commands that searches and seizures be reasonable, and generally requires the
government to secure a warrant based on probable cause before arresting or searching an individual. But
the Supreme Court has long recognized that the government may conduct routine inspections and
searches of individuals entering at the U.S. border without a warrant or any individualized suspicion of
criminal activity. In recent decades, some federal courts have applied the “border search exception” to
allow relatively limited, manual searches at the border of electronic devices such as computers and cell
phones. Courts, however, have disagreed over whether more intrusive, forensic examinations of such
devices require heightened suspicion of criminal activity. Recently in Alasaad v. Nielsen, a federal district
court ruled that any “non-cursory” border search of an electronic device—whether conducted manually or
forensically—requires reasonable suspicion that the device contains contraband. The court’s decision
could restrict the government’s ability to conduct border searches of electronic devices, which the
government contends is essential to prevent crimes and protect border security. This Legal Sidebar
examines the application of the Fourth Amendment’s border search exception to searches of electronic
devices and the district court’s decision in Alasaad limiting the government’s border search authority.
The Fourth Amendment and the Border Search Exception
Under the Fourth Amendment the government generally must obtain a warrant based on probable cause
before arresting or searching an individual. To show probable cause, the government must present facts
evidencing a reasonable belief that an individual has likely committed a criminal offense. The Fourth
Amendment may also limit certain governmental searches and seizures conducted in non-criminal, civil
proceedings (e.g., building inspections, involuntary civil commitment). The Supreme Court, however, has
held that the government may engage in a warrantless arrest or search in certain circumstances. For
example, in the criminal context, the government may bypass the warrant requirement if an arrest occurs
in public and is based on probable cause, or if a search is incident to a lawful arrest. Additionally,
warrantless searches and seizures of limited duration and intrusiveness, such as a “stop and frisk,” may be
permitted if there is reasonable suspicion of criminal activity. This standard, lower than the probable
cause threshold for an arrest, requires specific, articulable facts—rather than a mere hunch—that
reasonably warrant suspicion of criminal activity. And in the civil immigration context, several courts
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have held or suggested that the Fourth Amendment requires an immigration-related detention to be
predicated on at least reasonable suspicion that an individual may be subject to removal.
Under the border search exception, the government may engage in routine inspections and searches of
individuals at the U.S. border without probable cause or reasonable suspicion of criminal activity. Citing
the federal government’s power to regulate the flow of people and goods across the border, the Supreme
Court has reasoned that “the Fourth Amendment’s balance of reasonableness is qualitatively different at
the international border than in the interior” of the United States, and there is less expectation of privacy
at the border. The Court has applied this exception not only to the physical border itself, but also to
searches at the border’s “functional equivalent,” such as an international airport in the interior of the
United States or a fixed roadside checkpoint near the U.S. border.
That said, a border search that extends beyond a routine search and inspection may require at least
reasonable suspicion of criminal activity. The Supreme Court has not precisely defined the scope of a
routine border search, but the Court has listed “strip, body cavity, or involuntary x-ray searches” as falling
outside that category. The Court has also suggested that non-routine border searches may include “highly
intrusive searches” that breach personal dignity and privacy interests, or cause the destruction of property.
Thus, the Court has held that the prolonged detention of a traveler pending a pregnancy test and rectal
examination required reasonable suspicion that she was an alimentary canal drug smuggler. On the other
hand, the search of an automobile fuel tank and the opening of international mail have been considered
routine border searches. Lower federal courts have also addressed the scope of a routine border search,
holding that it may include the suspicionless search of closed containers, papers, luggage, purses, wallets,
pockets, and photographs.
Judicial Application of the Border Search Exception to Searches of
Electronic Devices
The Supreme Court has not addressed whether the routine border search exception extends to searches of
electronic devices such as cell phones—items that may contain more personal and sensitive information
than what would typically be found inside a traveler’s briefcase or automobile. But in 2014 the Court in
Riley v. California considered the constitutionality of warrantless electronic device searches in the interior
of the United States. The Court held that the police generally could not conduct a warrantless search of a
cell phone seized during an arrest, even though the warrant requirement usually does not apply to
searches incident to a lawful arrest. Noting that this exception ordinarily applies to brief physical searches
of property within the immediate control of the arrestee to prevent potential harm to the police officers
and the destruction of evidence, the Court determined that “[t]here are no comparable risks when the
search is of digital data.” The Court also concluded that searching cell phone data raises greater privacy
concerns than searching physical items typically found on a person (e.g., a wallet). The Court observed
that cell phones, unlike most other physical items, contain “immense storage capacity” and carry a
broader range of private information, including photographs, videos, contacts, text messages, financial
records, and Internet browsing history. The Court thus held that the police generally must secure a warrant
before searching the contents of a cell phone seized pursuant to an arrest. But the Court noted that “other
case-specific exceptions may still justify a warrantless search of a particular phone.”
Lower courts have considered whether the routine border search exception authorizes warrantless
searches of cell phones and other electronic devices at the border. For instance, the U.S. Courts of
Appeals for the Fourth and Ninth Circuits have held that manually inspecting the contents of a computer
or cell phone at the border is permissible given the government’s broad authority at the border, and that
such searches are no less routine than scanning the contents of a traveler’s luggage. But lower courts have
disagreed over whether more intrusive searches of electronic devices require particularized suspicion of
criminal activity. The Fourth and Ninth Circuits have both held that the forensic examination of a device

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(e.g., using software to copy a computer’s hard drive and analyze its contents entirely, or recording
information from a cell phone for further processing) exceeds the scope of a routine border search
because of its comprehensive nature and the enhanced risk of exposing private information. In doing so,
both courts relied on the Supreme Court’s reasoning in Riley that cell phone searches implicate greater
privacy concerns than searches of most other physical items. Thus, the Fourth and Ninth Circuits have
held that forensic searches of electronic devices require reasonable suspicion of a crime. Conversely, the
Eleventh Circuit has held that the Fourth Amendment requires no suspicion of criminal activity for
intrusive border searches of electronic devices or any other type of personal property (as opposed to
intrusive searches of a person’s body), and that Riley does not apply to searches at the border, where there
are diminished privacy expectations.
In sum, while lower courts have applied the routine border search exception to cover manual searches of
electronic devices at the border, courts have disagreed on whether more intrusive, forensic searches of
such devices should be restricted.
The Department of Homeland Security’s Current Policies on Border
Searches of Electronic Devices
The Department of Homeland Security’s (DHS) Customs and Border Protection (CBP), the agency
primarily responsible for enforcing customs and immigration laws along the international borders and at
U.S. ports of entry, typically conducts any initial search or inspection of an electronic device. The agency
defines an electronic device to include “any device that may contain information in an electronic or digital
form, such as computers, tablets, disks, drives, tapes, mobile phones and other communication devices,
cameras, music and other media players.” DHS’s Immigration and Customs Enforcement (ICE), the
agency primarily responsible for immigration enforcement in the interior of the United States, as well as
the investigation of cross-border criminal activity, may also play a role. For example, when CBP seizes or
detains an electronic device, it may turn over the device to ICE for analysis and investigation.
Previously, both CBP and ICE authorized electronic device searches at the border “with or without
individualized suspicion” of criminal activity. But more recently, the agencies issued superseding policies
that distinguish between a “basic search” and an “advanced search” of an electronic device. A basic
search is described simply as any electronic device search that is “not an advanced search,” and involves a
manual examination of the electronic device and its contents. The basic search may be conducted “with or
without suspicion” of criminal activity. An advanced search occurs when a CBP or ICE official “connects
external equipment, through a wired or wireless connection, to an electronic device not merely to gain
access to the device, but to review, copy, and/or analyze its contents” (i.e., a forensic search). Both CBP
and ICE policies provide that an advanced search may occur only upon reasonable suspicion of criminal
activity (CBP also authorizes an advanced search if there is a “national security concern”). In addition,
CBP’s policy authorizes officers to “detain” an electronic device (or copies of information contained
within it) “for a brief, reasonable period of time to perform a more thorough border search,” generally not
exceeding a period of 5 days. And CBP officers may “seize and retain” an electronic device (or copies of
information from the device) if there is probable cause that the device contains evidence of a crime.
The Federal District Court’s Decision in Alasaad v. Nielsen
In Alasaad v. Nielsen, ten U.S. citizens and one lawful permanent resident (plaintiffs) had their cell
phones or other electronic devices searched by CBP or ICE officials upon their return to the United States
following trips abroad. Plaintiffs claimed that the officials had threatened to confiscate their devices if
they refused to provide their passwords to unlock them, or that they otherwise felt coerced to provide
access to their devices. Plaintiffs alleged that, upon unlocking their devices, the officers viewed private
information, such as photographs, work product, and attorney-client communications. In some instances,

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the officers confiscated the devices or retained information collected from them. The plaintiffs filed a
lawsuit in the U.S. District Court for the District of Massachusetts, arguing that the warrantless searches
of their electronic devices violated the Fourth Amendment. They further claimed that CBP and ICE
violated the First Amendment because the searches disclosed “expressive content and associational
information.” In a motion for summary judgment, the plaintiffs asked the court to declare the agencies’
practices unconstitutional and to issue an injunction prohibiting them from searching electronic devices
without a warrant supported by probable cause. In response, the government argued that the border search
exception permits the government to search electronic devices without a warrant or probable cause.
The federal district court granted, in part, the plaintiffs’ motion. The court first noted that the border
search exception grants the government broad authority to conduct warrantless searches and seizures at
the U.S. border without a particularized suspicion of criminal activity. But the court recognized that this
exception applies to routine border searches and not to highly intrusive searches. The court determined
that the Supreme Court’s conclusion in Riley v. California that cell phone searches implicate greater
privacy concerns than other types of searches incident to an arrest “holds the same force when applied to
border searches.” The court declared that “[t]he potential level of intrusion from a search of a person’s
electronic devices simply has no easy comparison to non-digital searches.”
Informed by the Supreme Court’s reasoning in Riley, the district court held that the electronic device
searches authorized by CBP’s and ICE’s policies go beyond the scope of a routine border search. The
court explained that, although CBP and ICE authorize either basic or advanced searches of electronic
devices, both types of searches “implicate the same privacy concerns” at stake in Riley. The court
reasoned that, in a basic search, CBP or ICE officers can manually scan and search the contents of the
device and access “a wealth of personal information.” And for advanced searches, the court noted that
they can reveal an even “broader range” of information, including deleted or encrypted data, and that such
searches enable the copying of information from the device.
The court distinguished the potentially intrusive searches permitted under a basic or advanced search from
a general “cursory search” of an electronic device, which “would fall within the border search exception
and not require a heightened showing of cause.” The court described a cursory search as “a brief look
reserved to determining whether a device is owned by the person carrying it across the border, confirming
that it is operational and that it contains data.” Because basic and advanced searches, by contrast, involve
a greater “intrusion into personal information,” the court ruled that they require reasonable suspicion that
an electronic device contains contraband (i.e., goods that are illegally imported or exported). The court
declined to impose the heightened requirement that the government obtain a warrant supported by
probable cause to conduct the search, as the plaintiffs had requested, reasoning that “the governmental
interests are different at the border” than in the interior of the United States.
The court also considered the plaintiffs’ contention that the warrantless search of “expressive materials”
within their electronic devices violated the First Amendment. Plaintiffs had alleged that their First
Amendment rights were implicated because their devices contained “highly sensitive information
concerning their personal, privileged, confidential, and anonymous communications and associations.”
The court concluded that the reasonable suspicion standard adopted for non-cursory border searches of
electronic devices could also be applied to searches that raise First Amendment concerns. Thus, the court
determined that it was unnecessary to issue any further ruling with respect to the First Amendment claim.
The court thus held that the non-cursory searches of the plaintiffs’ electronic devices without reasonable
suspicion violated the Fourth Amendment. Subsequently, in a separate order, the court issued an
injunction barring CBP and ICE from conducting a border search or seizure of any electronic device
owned by the plaintiffs unless the agencies have reasonable suspicion that the device contains contraband.
The court further ruled that, in the event CBP and ICE have the requisite reasonable suspicion, they are
barred from detaining the electronic device “longer than a reasonable period that allows for an
investigatory search for that contraband.”

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Implications of Alasaad and Other Considerations
Under the border search exception, the government may conduct routine searches at the border or its
functional equivalent without a warrant or any particularized suspicion of criminal activity. Previously,
courts have applied this exception to relatively limited, manual searches of electronic devices. But some
courts have held that more intrusive, forensic searches require at least reasonable suspicion of criminal
activity. In reaching this conclusion, some courts have relied on the Supreme Court’s decision in Riley v.
California, reasoning that the significant privacy interests implicated by warrantless cell phones searches
incident to an arrest apply equally to forensic searches of electronic devices at the border.
Citing Riley, the federal district court in Alasaad v. Nielsen appears to go a little further, requiring
reasonable suspicion not only for “advanced” forensic searches of electronic devices, but also for “basic”
manual searches that are not “cursory”—that is, confined to confirming that a device is operational and
stored with data. Put another way, under Alasaad, any non-cursory border search of an electronic
device—whether conducted manually or forensically—must be supported by at least reasonable suspicion
to withstand Fourth Amendment scrutiny. The court’s ruling could considerably limit DHS’s ability to
conduct border searches of electronic devices. Currently, CBP and ICE allow basic manual searches of
electronic devices “with or without individualized suspicion,” and only require heightened suspicion for
advanced, forensic searches. Under Alasaad, manual border searches of electronic devices may, absent
reasonable suspicion, be limited to turning on the device and verifying that it has data. Any further
action—including searching the contents of the device—would require at least reasonable suspicion of a
crime.
Alasaad raises questions about the interplay between the Supreme Court’s decision in Riley and the
border search doctrine. On one hand, the Riley decision recognizes that searches of cell phones implicate
privacy concerns “far beyond” those implicated by the search of other physical items like wallets or
purses. On the other hand, the border search doctrine instructs that “the Government’s interest in
preventing the entry of unwanted persons and effects is at its zenith at the international border,” and that
“the expectation of privacy is less at the border than it is in the interior.” But does that balance of interests
change when a border search extends to cell phones and other electronic devices? As the Supreme Court
noted in Riley, cell phones are basically “minicomputers” that can store a vast amount of “sensitive
personal information” not typically found inside a wallet or even a home. Arguably, these privacy
interests are no less significant at the border.
Further, if the privacy concerns implicated by cell phone searches in Riley extend to border searches, at
what point should there be restrictions on such searches? As discussed above, some courts have applied
Riley to restrict only forensic searches of electronic devices, while the Alasaad court would restrict any
non-cursory search. Courts have also disagreed about whether the border searches should be limited in
scope to searching for digital contraband within the electronic device itself (e.g., child pornography), or
whether they may extend to searching for any evidence of a crime (e.g., examining device to determine
whether there is evidence that a person was attempting to export firearms). The Eleventh Circuit,
meanwhile, has held that Riley does not apply at all to border searches, and that the Supreme Court has
never required heightened suspicion for border searches of property—no matter how intrusive. At some
point the Supreme Court may decide to resolve these questions and determine the extent to which the
border search exception applies to searches of electronic devices.
Recent Legislative Activity
Given judicial disagreement over the extent to which the government may conduct warrantless searches
of electronic devices at the border, Congress may choose to clarify that authority. In the 116th Congress,
legislation has been introduced that generally restricts the government’s border search power. For
example, one bill (S.2694) would allow a manual electronic device search (which is defined to include

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any manual examination of the device) only upon reasonable suspicion that (1) the individual transporting
the device is carrying contraband or engaged in certain other specified activity, and (2) the device
contains evidence relevant to the contraband or specified activity. The bill would allow the seizure of an
electronic device only upon probable cause that (1) the individual is carrying contraband or engaged in
certain other specified activity, or has violated any law punishable by more than one-year imprisonment,
and (2) the device contains evidence related to the contraband, specified unlawful activity, or criminal
violation. The bill would permit a forensic search (which is defined to include a search that uses software
or external equipment, involves copying of data, is conducted for more than 4 hours, or is conducted
manually with the entry of a password) only pursuant to a warrant. The bill would also set forth certain
procedures for electronic device searches (e.g., obtaining supervisory approval), and require a warrant or
court order no later than 48 hours after the seizure of a device.
A separate bill, the Protecting Data at the Border Act (S.1606, H.R.2925), would prohibit the government
from accessing the digital contents of an electronic device belonging to a “United States person” (defined
to include a U.S. citizen and a lawful permanent resident) without a warrant supported by probable cause;
and denying a United States person’s entry into or exit from the United States based on his or her refusal
to provide access to the device. If a United States person consents to providing access to his or her
electronic device, the bill would require the government to obtain the consent in writing (with written
advisals indicating that access to the device cannot be compelled without a valid warrant) before
accessing the device. The bill would also prohibit the government from delaying a United States person’s
entry into or exit from the United States for more than 4 hours pending a determination as to whether that
person will consent to providing access to the device. The bill further provides for certain “emergency
exceptions” to the warrant requirement (e.g., if a CBP officer reasonably determines that an emergency
situation exists that involves potential death or serious physical injury to any person, and that the situation
requires immediate access to the contents of the electronic device).


Author Information

Hillel R. Smith

Legislative Attorney





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