Northwest Arkansas Democrat-Gazette
Hey, get out of my phone!
International travelers grudgingly accept that their cellphones or laptops might be handled and given a cursory inspection at an airport or border crossing. But some travelers, including U.S. citizens, have had the contents of their electronic devices— including family photographs and personal information—scrutinized by border agents.
A federal judge in Boston rightly held last week that such searches may be carried out only if the authorities have a reasonable suspicion that the devices contain contraband such as classified national security information or child pornography.
Traditionally the courts have treated searches at the border as an exception to the Fourth Amendment’s ban on “unreasonable searches and seizures” because of the nation’s interest in intercepting contraband. But this judge noted that the exception was meant to cover “routine” searches, not the intrusive inspection of electronic devices that are notable for the vast quantity of personal information they contain.
But it’s significant that last week’s ruling follows—and refers to—a 2014 Supreme Court decision that broke new ground in recognizing that searches of devices such as smartphones and laptops pose a special threat to privacy. As Chief Justice John G. Roberts Jr. wrote in that ruling: “Modern cellphones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse.”
The 2014 ruling involved the search of a cellphone belonging to a person under arrest, and the court held that before trawling through its contents police had to obtain a search warrant by showing they had probable cause to believe that a crime had been committed.
Because of the special circumstances of border searches, last week’s ruling requires only reasonable suspicion. The ruling rightly requires reasonable suspicion before a border agent can conduct even a “basic” search of a device’s contents.
This ruling recognizes that trawling through a traveler’s phone or laptop for no reason is a 21st century violation of the Fourth Amendment. When a suitable case presents itself, the Supreme Court should make the same call.