Civics: Federal Judge Makes History in Holding That Border Searches of Cell Phones Require a Warrant

Sophia Cope:

In analyzing the government’s interests in gaining warrantless access to cell phone data at the border, the Smith court considered the traditional justifications for the border search exception: in the words of the judge, “preventing unwanted persons or items from entering the country.” In particular, the government has a strong interest in conducting warrantless searches of luggage and other containers to identify goods subject to customs duty (import tax) and items considered contraband or that would otherwise be harmful if brought into the country such as drugs or weapons. 

Considering these traditional rationales for the border search exception in the context of modern cell phones, the Smith court concluded that the government’s “interest in searching the digital data ‘contained’ on a particular physical device located at the border is relatively weak.”

The court focused on the internet and cloud storage, stating: “Stopping the cell phone from entering the country would not … mean stopping the data contained on it from entering the country” because any data that can be found on a cell phone—even digital contraband—“very likely does exist not just on the phone device itself, but also on faraway computer servers potentially located within the country.” This is different from physical items that if searched without a warrant may be efficiently interdicted, and thereby actually prevented from entering the country.