EFF, along with the national ACLU, the ACLU affiliates in Maryland, North Carolina, South Carolina, and Virginia, and the National Association of Criminal Defense Lawyers (NACDL) filed an amicus brief in the U.S. Court of Appeals for the Fourth Circuit urging the court to require a warrant for border searches of electronic devices under the Fourth Amendment, an argument EFF has been making in the courts and Congress for nearly a decade. The Fourth Circuit heard oral arguments on May 8. The Knight Institute at Columbia University and Reporters Committee for Freedom of the Press also filed a helpful brief focusing on the First Amendment implications of border searches of electronic devices.

The case, U.S. v. Belmonte Cardozo, involves a U.S. citizen whose cell phone was manually searched after he arrived at Dulles airport near Washington, D.C., following a trip to Bolivia. He had been on the government’s radar prior to his international trip and had been flagged for secondary inspection. Border officers found child sexual abuse material (CSAM) on his phone, and he was later arrested and criminally charged.

The district court denied the defendant’s motion to suppress the images and other data obtained from the warrantless search of his cell phone. He was ultimately convicted of child pornography and sexual exploitation of minors because he had used social media to entice minors to send him sexually explicit photos of themselves.

The number of warrantless device searches at the border and the significant invasion of privacy they represent is only increasing. In Fiscal Year 2025, U.S. Customs and Border Protection (CBP) conducted 55,318 device searches, both manual (“basic”) and forensic (“advanced”).

A manual search involves a border officer tapping or mousing around a device. A forensic search involves connecting another device to the traveler’s device and using software to extract and analyze the data to create a detailed report the device owner’s activities and communications. However, both search methods are highly privacy-invasive, as border officers can access the same data that can reveal the most personal aspects of our lives, including political affiliations, religious beliefs and practices, sexual and romantic affinities, financial status, health conditions, and family and professional associations.

In our amicus brief, we argued that the Fourth Circuit should adopt the same legal standard for both manual and forensic searches, and that standard should be a warrant supported by probable cause and issued by a neutral judge. The highly personal nature of the information found on electronic devices is why there should not be different legal standards for different methods of search, and why a judge should determine whether the government has provided credible preliminary evidence that there’s a likelihood that further evidence will be found on the device indicating wrongdoing by the specific traveler.

Moreover, we argued that “the process of getting a warrant is not unduly burdensome,” and that “getting a warrant would not impede the efficient processing of travelers. If border officers have probable cause to search a device, they may retain it and let the traveler continue on their way, then get a search warrant. Or, where there is truly no time to go to a judge, the exigent circumstances exception may apply on a case-by-case basis.”

The Fourth Circuit in prior cases only considered forensic device searches at the border. In U.S. v. Kolsuz (2018), the court held that the forensic search of the defendant’s cell phone at the border “must be considered a nonroutine border search, requiring some measure of individualized suspicion” of a transnational offense, but the court declined to decide whether the standard is only reasonable suspicion or instead a probable cause warrant. Then in U.S. v. Aigbekaen (2019), the court held that a forensic device search at the border in support of a purely domestic law enforcement investigation requires a warrant. The court also reiterated the general Kolsuz rule for a forensic border-related device search: the “Government must have individualized suspicion of an offense that bears some nexus to the border search exception's purposes of protecting national security, collecting duties, blocking the entry of unwanted persons, or disrupting efforts to export or import contraband.” Now, manual searches are before the court.

In urging the Fourth Circuit to adopt a warrant standard for both manual and forensic device searches at the border, we argued that the U.S. Supreme Court’s balancing test in Riley v. California (2014) should govern the analysis here. In that case, the Court weighed the government’s interests in warrantless and suspicionless access to cell phone data following an arrest, against an arrestee’s privacy interests in the depth and breadth of personal information stored on a cell phone. The Court concluded that the search-incident-to-arrest warrant exception does not apply, and that police need to get a warrant to search an arrestee’s phone.

The U.S. Supreme Court has recognized for a century a border search exception to the Fourth Amendment’s warrant requirement, allowing not only warrantless but also often suspicionless “routine” searches of luggage, vehicles, and other items crossing the border. The primary justification for the border search exception has been to find—in the items being searched—goods smuggled to avoid paying duties (i.e., taxes) and contraband such as drugs, weapons, and other prohibited items, thereby blocking their entry into the country.

But a traveler’s privacy interests in their suitcase and its contents are minimal compared to those in all the personal data on the person’s cell phone or laptop. And a travelers’ privacy interests in their electronic devices are at least the same as those considered in Riley. Modern devices, over a decade later, contain even more data that can reveal even more intimate details about our lives.

We hope that the Fourth Circuit will rise to the occasion and be the first circuit to fully protect travelers’ Fourth Amendment rights at the border.

EFF, along with the national ACLU and the ACLU affiliates in Pennsylvania, Delaware, and New Jersey, filed an amicus brief in the U.S. Court of Appeals for the Third Circuit urging the court to require a warrant for border searches of electronic devices, an argument EFF has been making in the courts and Congress for nearly a decade.

The case, U.S. v. Roggio, involves a man who had been under ongoing criminal investigation for illegal exports when he returned to the United States from an international trip via JFK airport. Border officers used the opportunity to bypass the Fourth Amendment’s warrant requirement when they seized several of his electronic devices (laptop, tablet, cell phone, and flash drive) and conducted forensic searches of them. As the district court explained, “investigative agents had a case coordination meeting and border search authority was discussed in early January 2017,” before Mr. Roggio traveled internationally in February 2017.

The district court denied Mr. Roggio’s motion to suppress the emails and other data obtained from the warrantless searches of his devices. He was subsequently convicted of illegally exporting gun manufacturing parts to Iraq (he was also charged in a superseding indictment with torture and also convicted of that).

The number of warrantless device searches at the border and the significant invasion of privacy they represent is only increasing. In Fiscal Year 2025, U.S. Customs and Border Protection (CBP) conducted 55,318 device searches, both manual (“basic”) and forensic (“advanced”).

While a manual search involves a border officer tapping or mousing around a device, a forensic search involves connecting another device to the traveler’s device and using software to extract and analyze the data to create a detailed report the device owner’s activities and communications. Border officers have access to forensic tools that help gain access to data on a locked or encrypted device they have physical access to. From public reporting, we know that more recent devices (and ones that have had the latest security updates applied) are more resistant to these type of tools, especially if they are turned off or turned on but not yet unlocked.

The U.S. Supreme Court has recognized for a century a border search exception to the Fourth Amendment’s warrant requirement, allowing not only warrantless but also often suspicionless “routine” searches of luggage, vehicles, and other items crossing the border.

The primary justification for the border search exception has been to find—in the items being searched—goods smuggled to avoid paying duties (i.e., taxes) and contraband such as drugs, weapons, and other prohibited items, thereby blocking their entry into the country. But a traveler’s privacy interests in their suitcase and its contents are minimal compared to those in all the personal data on the person’s phone or laptop.

In our amicus brief, we argue that the U.S. Supreme Court’s balancing test in Riley v. California (2014) should govern the analysis here. In that case, the Court weighed the government’s interests in warrantless and suspicionless access to cell phone data following an arrest against an arrestee’s privacy interests in the depth and breadth of personal information stored on a cell phone. The Court concluded that the search-incident-to-arrest warrant exception does not apply, and that police need to get a warrant to search an arrestee’s phone.

Travelers’ privacy interests in their cell phones, laptops and other electronic devices are, of course, the same as those considered in Riley. Modern devices, over a decade later, contain even more data that together reveal the most personal aspects of our lives, including political affiliations, religious beliefs and practices, sexual and romantic affinities, financial status, health conditions, and family and professional associations.

In considering the government’s interests in warrantless access to digital data at the border, Riley requires analyzing how closely such searches hew to the original purpose of the warrant exception—preventing the entry of prohibited goods themselves via the items being searched. We argue that the government’s interests are weak in seeking unfettered access to travelers’ electronic devices.

First, physical contraband (like drugs) can’t be found in digital data.

Second, digital contraband (such as child sexual abuse material) can’t be prevented from entering the country through a warrantless search of a device at the border because it’s likely, given the nature of cloud technology and how internet-connected devices work, that identical copies of the files are already in the country on servers accessible via the internet.

Finally, searching devices for evidence of contraband smuggling (for example, the emails here revealing details of the illegal import scheme) and other evidence for general law enforcement (i.e., investigating non-border-related domestic crimes) are too “untethered” from the original purpose of the border search exception, which is to find prohibited items themselves and not evidence to support a criminal prosecution. Therefore, emails or other data found on a digital device searched without a warrant at the border cannot and should not be used as evidence in court.

If the Third Circuit is not inclined to require a warrant for electronic device searches at the border, we also argue that such a search—whether manual or forensic—should be justified only by reasonable suspicion that the device contains digital contraband and be limited in scope to looking for digital contraband.

This extends the Ninth Circuit’s rule from U.S. v. Cano (2019) in which the court held that only forensic device searches at the border require reasonable suspicion that the device contains digital contraband—that is, some set of already known facts pointing to this possibility—while manual searches may be conducted without suspicion. But the Cano court also held that all searches must be limited in scope to looking for digital contraband (for example, call logs are off limits because they can’t contain digital contraband in the form of photos or files).

We hope that the Third Circuit will rise to the occasion and be the first circuit to fully protect travelers’ Fourth Amendment rights at the border.