The Border Revisited

Three years ago, I went on vacation. When I came back, COVID started, my son Noah was born, our team grew, and shrank, and grew again; time became a vortex. I cannot believe three years has gone by, but it has; time really flies. A lot of things have changed in both our business and personal lives – but not much has changed as far as your rights at the border – you still don’t have any! I’ve dusted this 2020 post off as a reminder for all of you who travel internationally with your computers, cell phones, and other important devices – if you come back to the US through O’Hare – your devices are all subject to search by Customs and Border Protection without a warrant and without any specific suspicion that you might be doing, or carrying, something illegal. But….. before we all get depressed – a special thanks to the super awesome, totally amazing, ever hardworking, team at OG+S for making this vacation possible. For all of my self-employed friends out there, you know how difficult it is to take a vacation without a team to lean on! (Spoiler alert: I’m in Mexico right now).

As a way of background before we get started – I hate flying. I hate TSA body scanners even more – and with the proliferation of facial recognition technology at ports of entry – crossing the border and “coming home” isn’t as exciting as it used to be. Even before facial recognition, though, crossing the border with your electronics was risky – why?

Let’s lay some easy groundwork that everyone is probably familiar with – in the United States, we have the right to privacy and have protections against unlawful (i.e. arbitrary) search and seizure. While we’re within the borders of the U.S., citizen or not, the protections apply (Yay Constitution!). At the border, when you’re trying to get back in, however, the same protections don’t apply (citizen or not). Wait…what?! Yeah…it’s called the border search exception.

The border search exception is a legal doctrine that allows searches and seizures at international borders and their functional equivalent without a warrant or probable cause. The doctrine is not an exception to the Fourth Amendment, but rather to its requirement for a warrant or probable cause. Not only is the expectation of privacy less at the border than in the interior, the Fourth Amendment balance between the interests of the government and the privacy right of the individual is also struck much more favorably to the government at the border. This balance at international borders means that routine searches are “reasonable” there, and therefore do not violate the Fourth Amendment’s bar against “unreasonable searches and seizures”.

So, on the one hand, big deal, right? Anyone who has been to O’Hare Terminal 5 has seen Daisy the drug beagle (no petting!) and had her sniff your bag. It makes sense for the government to search people coming into the United States, and it’s probably reasonable to allow some exceptions to the normal protections afforded to those people who are already “on the inside.” So, sure…search my bag, ask me some questions, let Daisy have a sniff.

What about your phone, though? What about your laptop? Is a CBP Agent allowed to force you to let him\her look through your pictures and other info on your phone for any reason? (Spoiler: Yes). But…what if the search wasn’t a quick “swipe through your pictures” but a complete forensic search and imaging (i.e. full copy) of the contents of your phone or laptop hard drive? (An “advanced search” in CBP lingo) What if you were forced to specifically decrypt your hard drive to facilitate the search? And, finally, what if the CBP Agent didn’t suspect you did anything illegal – does such an advanced search still fall within the border search exception?

The safe answer is easy: Yes. The border search exception allows for a full forensic download of your hard drive without a warrant and without reasonable suspicion or probable cause. The realistic answer is also easy: Do you want to be stuck in Terminal 5 forever? Better hand over the laptop, regardless of what you think the law is.

The legal answer, though, is more nuanced. Currently, there is a split between the Federal Circuit Courts of Appeal:

1st Circuit: Alasaad v. Mayorkas – Full forensic download of your phone is permitted with reasonable suspicion (no warrant or probable cause). Basic search can be performed at will, without any specific reasonable suspicion.

4th Circuit: United States. v. Kolsuz – Full forensic download of your phone is permitted with reasonable suspicion (no warrant or probable cause). Basic search can be performed at will, without any specific reasonable suspicion. (Modified by United States v. Aigbekaen which requires suspicion that the device contains contraband)

7th Circuit: (where we are) Issue remains unresolved; Full forensic download of your phone is permitted with reasonable suspicion (assuming CBP is following their current guidelines)

9th Circuit: United States v. Cano Full forensic download of your phone is permitted with reasonable suspicion (no warrant or probable cause). Basic search can be performed at will, without any specific reasonable suspicion.

11th Circuit: United States v. Touset – A freaking free for all – your entire phone can be downloaded without any reasonable suspicion whatsoever.

All of the circuits are not listed here – but if you’re interested in reading more, you can see this more detailed synopsis here: https://crsreports.congress.gov/product/pdf/LSB/LSB10387

Moral of the story: I didn’t (and will never) bring my laptop abroad. I’ll be back in the office on March 13th – if I’m not…come find me at Terminal 5.