re: CBP Says Americans Have No Fourth Amendment At The Airport

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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 (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.

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