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Protections For Cell Phone Searches Do Not Apply At the Border - Court

Searches can be more extensive when entering the United States says First Circuit

Cell phones are fair game for border searches

A federal circuit court covering Maine has ruled that constitutional protections against unreasonable searches do not apply when a person enters the United States - allowing government agents to dig around in a person's phone if they are returning from a trip abroad with little or no reason.

Normally, if police officers want to search a person's cell phone they have to get a search warrant requiring probable cause. However, the First Circuit - the federal appeals court covering Maine, Massachusetts, New Hampshire, Rhode Island, and Puerto Rice has decided that does not apply if a person is entering the United States.

At issue are policies by Immigration and Customs Enforcement from 2009 and another by Customs and Border Protection from 2018.

The Customs and Border Protection (CBP) policy covers 'basic' and 'advanced' searches of devices. For both types, an electronic device (which can be computers, tablets, disks, cell phones, cameras, music devices etc) has to be disconnected from the internet and the device itself is searched. An advanced search, which needs approval from a CBP supervisor, is where a device's contents are copied, reviewed or analyzed by connecting external equipment. A basic search is one that isn't 'advanced.'

The ICE policy allows 'basic' searches of electronic devices without any suspicion at all, but there must be 'reasonable suspicion' for an advanced search (connecting and extracting information on a device). In criminal law, reasonable suspicion is having some factual basis that a crime is, has been, or will be committed as a reason to search a phone, whereas probable cause is somewhere between that and less than a 50% chance of some form of criminal activity.

The case decided by the First Circuit involved ten United States citizens, and a permanent resident, whose devices were given a 'basic' search alleging violations of the First and Fourth Amendments because the searches were done without probable cause.

The reason this matters is that in 2014, the United States Supreme Court decided that searching a cell phone after someone has been arrested - because of the vast amounts of highly-personal data stored on them - required a search warrant (and a threshold showing of probable cause). However, searches at the border (for, say, luggage) have traditionally been a free-for-all, with little if any constitutional protections. Lower federal courts have been struggling with the issue of whether the landmark case that decided on the higher level of proof needed to search a phone also within the border applied to those entering the country - including citizens.

The ten plaintiffs argued that that 2014 decision - the need for a warrant to search a phone - applied when a person enters the United States, or at LEAST some form of suspicion short of a warrant to justify one as at least one federal circuit court has ruled. However, that was not how the Fist Circuit decided the case.

The First Circuit's decision, overturning a federal district court's higher standard of protection of 'reasonable suspicion' for any basic search, means that if you have gone abroad for a holiday, expect border agents to look at your phone without any justification for doing it.


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