On The Front Lines

Rutherford Institute Warns: Warrantless Border Searches of Americans’ Cell Phones Circumvents Fourth Amendment

WASHINGTON, D.C. — Warning that the government should not be permitted to use international travel as an excuse to rummage through the digital contents of a person’s life without a warrant, The Rutherford Institute is asking the U.S. Supreme Court to rein in warrantless searches of Americans’ cell phones at the nation’s borders and international airports.

In an amicus brief filed in Anibowei v. Blanche, Rutherford Institute attorneys argue that modern cell phones—which can contain years of private communications, photographs, financial and medical information, internet searches, location histories and other sensitive data—cannot constitutionally be treated like ordinary luggage subject to routine inspection at the border.

The case involves an immigration attorney whose cell phone—which contains confidential communications with clients, including clients in removal proceedings involving the Department of Homeland Security—was searched by federal agents five different times at airports when he returned from international travel, including a forensic search in which data from his phone was downloaded and retained by the government.

“The government should not be able to turn every airport, seaport and border crossing into a Constitution-free zone where Americans can be forced to expose the most intimate details of their lives simply because they traveled outside the country. The border-search exception was never intended to become a blank check allowing the government to conduct digital fishing expeditions whenever an American returns home from abroad,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “A cell phone is not a suitcase. It is a digital record of where we go, whom we know, what we believe, what we buy, what we read, what we say and, increasingly, what happens inside our homes. Constitutional rights cannot depend on the government voluntarily deciding not to abuse the power it claims. If privacy exists only at the discretion of law enforcement, it is not much of a right at all.”

At issue in Anibowei is the scope of the “border-search exception,” a judicial doctrine that generally allows government officials greater latitude to conduct warrantless searches at international borders and airports in order to prevent the entry of contraband and enforce customs and immigration laws. The Fifth Circuit has held that government agents may conduct “basic” or manual searches of travelers’ cell phones at the border without a warrant and that an “advanced” or forensic search using external equipment to copy or analyze a device’s contents requires, at most, merely reasonable suspicion—but still not a warrant. In George Anibowei’s case, the appeals court concluded that its existing precedents foreclosed his Fourth Amendment challenge.

Weighing in before the Supreme Court in Anibowei, The Rutherford Institute argues that applying a doctrine developed for searches of physical goods and luggage to the vast quantities of personal information contained on modern smartphones ignores both the history of the Fourth Amendment and the Supreme Court’s growing recognition that digital searches raise fundamentally different privacy concerns. In Riley v. California, the Supreme Court held that police generally must obtain a warrant before searching a cell phone seized during an arrest, recognizing that modern phones can reveal “the sum of an individual’s private life.”

More recently, in Chatrie v. United States, a case in which The Rutherford Institute also filed an amicus brief, the Supreme Court held that the government’s acquisition of certain geofence location data constitutes a Fourth Amendment search. The Institute argues that those same constitutional principles should not disappear merely because a person crosses an international border. Where genuine emergencies require immediate access to a phone, existing Fourth Amendment doctrines already permit warrantless searches under exigent circumstances; otherwise, the government should have to establish probable cause and obtain a warrant for the search.

Theodore A. Howard, Lukman Azeez, Jason McCullough, Boyd Garriott, Stephanie Rigizadeh, Melissa Alba, and Anthony M. Paranzino at Wiley Rein LLP advanced the arguments in the Anibowei v. Blanche amicus brief.

The Rutherford Institute, a nonprofit civil liberties organization, provides legal assistance at no charge to individuals whose constitutional rights have been threatened or violated, and educates the public on a wide spectrum of issues affecting their freedoms.