A case making its way through the United States court system right now could have long-lasting effects on how much–if any–privacy travelers have when they reach the border.
The case revolves around the prosecution of a woman named Maria Isabel Molina-Isidoro, whose phone was searched at the U.S. border. Some of the information found on the device is being used in her prosecution on drug charges, and the EFF, a digital rights advocacy group, has filed an amicus brief in the case saying that border agents should need to obtain a warrant before performing such searches. The key point in the case and the EFF’s brief is whether searches of digital devices such as phones, laptops, and tablets are covered by the exception to the Fourth Amendment for routine border searches.
That exception is decades old, and the Supreme Court created it to allow searches of luggage and other normal personal effects for customs and immigration purposes. The EFF said in its brief that such searches are not the same as manual or forensic searches of phones or laptops.
“The Fourth Amendment’s border search exception, permitting warrantless and suspicionless ‘routine’ searches of belongings and persons at the U.S. border, should not apply to digital devices like Ms. Molina-Isidoro’s cell phone. All border searches of the data stored or accessible on digital devices—whether ‘manual’ or ‘forensic’-are ‘non-routine’ and thus fall outside the border search exception. This is because any search of digital data is a ‘highly intrusive’ search that implicates the ‘dignity and privacy interests’ of the traveler,” the brief says.
“Border agents can get a comprehensive look at a traveler’s financial life with smartphone or tablet applications.”
Searches of digital devices at the U.S. border have increased dramatically in recent years. From 2015 to 2016, such searches jumped from nearly 5,000 to almost 24,000 for the year. EFF officials said in the brief filed with the United States Court of Appeals for the Fifth Circuit that because travelers’ phones and other devices hold so much private information, border agents should be required to get a warrant before searching them.
“Our cell phones and laptops provide access to an unprecedented amount of detailed, private information, often going back many months or years, from emails to our coworkers to photos of our loved ones and lists of our closest contacts,” said EFF Staff Attorney Sophia Cope.
“This is light years beyond the minimal information generally contained in other kinds of personal items we might carry in our suitcases. It’s time for courts and the government to acknowledge that examining the contents of a digital device is highly intrusive, and Fourth Amendment protections should be strong, even at the border.”
The EFF argues in the brief that phones and tablets aren’t just storage and communication devices, but also can provide a detailed picture of a person’s life.
“Importantly, many digital devices, including Ms. Molina-Isidoro’s cell phone, permit access to personal information stored in the ‘cloud’—that is, not on the devices themselves, but on servers accessible via the Internet. Thus, border agents can get a comprehensive look at a traveler’s financial life with smartphone or tablet applications (‘apps’) that link to bank, credit card, and retirement accounts, as well as monthly bills. Or they can see inside a traveler’s home via live video feeds provided by home security apps,” the brief says.
