Cell Phones and the Border Search Exception: Circuits Split over the Line Between Sovereignty and Privacy

Gina R. Bohannon

Traditionally, the United States government has had plenary authority to conduct warrantless searches at the international border, and its functional equivalent. The border search exception allows U.S. Customs and Border Protection (“CBP”) and other Department of Homeland Security (“DHS”) personnel to search persons and property entering or exiting the country without obtaining a warrant or, in most cases, articulating any particularized suspicion for the search. At a growing rate, in addition to x-raying luggage, opening vehicle trunks, and sifting through other containers, CBP personnel have collected cell phones, laptops, and other electronic devices carried across the border and manually examined or downloaded and forensically searched their digital contents.

In light of growing privacy concerns and the United States Supreme Court’s recent limitations on cell phone searches under other traditional warrant exceptions, some travelers have argued that the warrantless search of their cell phones, though conducted upon entering or exiting the country, violates the Fourth Amendment. With no direct ruling from the Supreme Court, the federal circuit courts have come to diverging conclusions about whether the contours of the border search exception include any or all cell phone searches.