Under regulations adopted by the Department of Homeland Security, border agents are permitted to search through the documents, photographs, emails, and other files stored on international travelers’ electronic devices without any reason to suspect that those travelers are engaged in wrongdoing. Agents may even confiscate the devices and hold them for months without a warrant or probable cause. In this case, Jatiek Smith was under investigation for a domestic crime. At the behest of investigators, border agents seized and copied the entire contents of Smith’s cell phone without a warrant as he reentered the United States after a trip. The agents had no reason to believe that the phone contained digital contraband—instead, they conducted the search purely to look for evidence to help the domestic investigation. After Smith was convicted of extortion, he appealed his conviction to the United States Court of Appeals for the Second Circuit, arguing that evidence from the warrantless search of his phone should not have been used at trial.

CAC filed an amicus brief in the Second Circuit supporting Smith’s arguments concerning the search of his cell phone. Our brief urges the court to reject the government’s attempt to justify these highly intrusive searches by relying on an expansion of the “border search doctrine.” That doctrine, a traditional exception to the Fourth Amendment’s warrant requirement, allows suspicionless searches of people and property entering the country in order to locate contraband and enforce customs and immigration laws. This exception, however, cannot justify giving government agents free rein to inspect the vast range of files stored on modern electronic devices—which include private and familial writings and correspondence, personal photographs, all manner of records, and other private information.

As we explain in our brief, the files stored on cell phones and similar devices are digital “papers,” and oppressive searches of personal papers were at the core of the historical struggle that inspired the Framers to adopt the Fourth Amendment. Consistent with those historical origins, personal papers have traditionally received heightened protection under the Fourth Amendment, and the Supreme Court has acknowledged the unique intrusions on privacy that occur when the contents of one’s papers are exposed to the government. For these reasons, searching the information stored on modern electronic devices cannot be equated with searching through physical objects carried in a traveler’s luggage, and unfettered power to browse through a person’s entire digital library cannot be squared with the Fourth Amendment simply because the search occurs at the border. Border searches of electronic devices require a warrant and probable cause or, at a minimum, reason to believe that a device contains digital contraband.