In a joint effort to safeguard the privacy rights of travelers, the Electronic Frontier Foundation (EFF), in collaboration with the American Civil Liberties Union (ACLU) and the New York Civil Liberties Union, has filed an amicus brief before the U.S. Court of Appeals for the Second Circuit. The goal is to request that a judicial order be required for searches of electronic devices at the borders. This is an argument that the EFF has consistently supported in various judicial and legislative instances for nearly a decade.
The case that prompted this action, U.S. v. Kamaldoss, concerns the criminal prosecution of an individual whose electronic devices, a cell phone and a laptop computer, underwent an intense forensic search upon arrival at New York’s JFK airport. Unlike a manual search, which allows a border officer to superficially inspect the device, a forensic search involves the use of specialized equipment and software to extract detailed information from the devices, which could provide a detailed portrait of the owner’s activities and communications.
Evidence derived from these forensic searches led to Kamaldoss’s formal indictment for trafficking prescription drugs. The lower court upheld the legality of the searches, based on reasonable suspicion that the accused was involved in illicit activities related to drug importation, justifying the application of the border search exception.
The number of warrantless device searches at the border has grown significantly. During fiscal year 2023, the U.S. Customs and Border Protection (CBP) conducted over 41,000 such searches, representing a significant intrusion into travelers’ privacy. Traditionally, the Supreme Court has authorized an exception for border searches, allowing them without a judicial order under the pretext of intercepting contraband and other illicit items planned to enter the country.
The EFF argues that the criteria from the Riley v. California case (2014) should apply to border searches. In Riley, the Supreme Court ruled that, following an arrest, reviewing data on a cell phone requires a judicial order, as these devices store a wealth of personal and sensitive information, including political beliefs, financial status, and personal connections.
The EFF’s position is that, while the government seeks unrestricted access to digital data at the borders, these interests are relatively weak. First, they argue that physical goods, such as drugs, will not be present in digital data. Second, they suggest that certain types of digital contraband are impossible to prevent through warrantless searches due to cloud technology.
Additionally, the organization argues that device searches for evidence of contraband do not align with the original reason for border search exceptions. If the Second Circuit is not inclined to require warrants for such searches, the EFF proposes that they only be conducted with reasonable suspicion and limited to detecting digital contraband.
Finally, it has been noted that certain district courts within the Second Circuit have already required warrants for device searches at the border, strengthening the EFF’s position. This circuit could be a pioneer in fully respecting the rights granted by the Fourth Amendment to travelers at the borders.
Source: MiMub in Spanish