Can Border Officers Search Your Phone?

In November 2019, a Summary Judgment Order was issued in Alasaad v. McAleenan. The order stated that border officers require a reasonable suspicion of contraband to conduct a phone search. The ruling was touted as a major win for privacy rights at the border.

That case was brought by 11 plaintiffs, ten U.S. citizens and one lawful permanent resident, who alleged that the searching of their electronic devices at the border violated the Fourth Amendment of the U.S. Constitution. The Fourth Amendment protects against unreasonable searches and seizures. Each plaintiff had their electronic devices searched at the border at least once. Searches included phones (locked and unlocked) and in some cases, laptops. One of the plaintiffs, Nadia Alasaad, had her iPhones searched at the border twice despite her objections. She is religious and did not want CBP officers, especially male officers, viewing photos of her and her daughters without their headscarves.

Generally, warrants are not required for a border search as people have a reduced expectation of privacy at the border. But that does not mean that such searches are limitless. There are legitimate privacy concerns at play that need to be weighed against the legitimate governmental interests.

CBP and ICE are the two agencies primarily responsible for border searches. CBP conducted approximately 108,000 searches of electronic devices at the border from FY 2012 through FY 2018. In January 2018, CBP updated its border search phone policy and under the new policy, there is no requirement of “reasonable suspicion” for a basic search.

According to the Summary Judgment Order issued by the U.S. District Court of Massachusetts in Alasaad v. McAleenan, the CBP and ICE policies violate the Fourth Amendment to the extent that the policies do not require reasonable suspicion that electronic devices contain contraband for there to be searches and seizures of said devices.

The entire Summary Judgment Order can be found here.

The case is consistent with the 4^th  and 9^th Circuits’ approaches. According to the 4^th Circuit, the forensic examination of a phone is a non-routine border search that requires some measure of individualized suspicion. The 9^th Circuit found that reasonable suspicion is required for the forensic examination of a laptop at the border.

However, in May 2018, the 11^th Circuit came to a different conclusion. The Eleventh Circuit ruled that electronic devices may be searched at the border even without reasonable suspicion of criminal activity. The judges found that the Fourth Amendment does not require reasonable suspicion for border officers to search electronic devices. The Court explained that travelers have diminished privacy while at the border, especially when weighted against the government’s interest in preventing the entry of unwanted persons and effects. Furthermore, the Court found that requiring a reasonable suspicion for searches would hinder the government’s efforts and create special protections for criminals.

As there are conflicting rulings, this issue is primed for the Supreme Court. Conversely, Congress could take up the issue to design the appropriate standard through the legislative process.