George Anibowei, the plaintiff in this case, is a U.S. citizen attorney who represents foreign clients in proceedings against the United States. Mr. Anibowei is a frequent international traveler whose cell phones have been searched without warrant upon re-entry to the United States on several occassions.
Mr. Anibowei sued the Department of Homeland Security (“DHS”), U.S. Customs and Border Protection (“CBP”), and Immigration and Customs Enforcement (“ICE”) to challenge the practice of warrantless searches of his cell phone at the border. The district court in Texas denied Mr. Anibowei’s motion for a preliminary injunction. Mr. Anibowei appealed to the Fifth Circuit.
The Fourth Amendment requires law enforcement to obtain a warrant to conduct a search unless an exception applies. Several exceptions have been developed over the course of American history, including an exception for searches incident to arrest, documents held by third parties, and searches at the border.
In the last decade, the Supreme Court has issued two landmark decisions declining to extend traditional warrant exceptions to searches of cell phones. In the first case, Riley v. California, the Court refused to extend the search incident to arrest exception to cell phones. The Court reasoned that the pre-digital exception struck the right balance between an officer’s interests in safety and preserving evidence of a crime and an arrestee’s privacy interests in the limited non-digital objects they might carry on them. In the world of cell phones, however, the balance of the interests flipped, and it was the individual’s privacy interests in the content of their cell phone which now outweighed the officer’s interests in safety and evidence preservation.
Most recently, in Carpeneter v. United States, the Court refused to expand an exception for third party documents to historical cell site location data generated by an individual’s cell phone. The Court again found that an individual’s privacy interest in the location data generated by their cell phone outweighs the government’s interests in obtaining that data.
Courts should follow Riley‘s and Carpenter‘s logic and refuse to extend the border search exception to searches of cell phones. The border search exception has traditionally been narrowly focused on interdicting contraband and ascertaining the identity and citizenship of individuals seeking admission to the United States. Neither of those interests is served by warrantless searches of U.S. citizens’ cell phones at the border. To the extent that digital contraband might be on a cell phone, the privacy interests outweigh the government’s interests because digital contraband does not have a direct nexus to the border (it primarily enters the United States through the internet, not customs), and a search for digital contraband necessarily subjects the entire device to an invasive search. Furthermore, courts should reject the government’s attempts to expand the justification for the border search exception to evidence gathering.
CBP and ICE directives currently allow border officials to search the cell phone of any individual entering or leaving the country without a warrant. The directives allow agents to conduct a “basic search”—a manual search that does not involve connecting another device to the phone to gain access, review, copy, or analyze the contents—without any individualized suspicion. To conduct an “advanced search,” agents must have reasonable suspicion that the individual is engaged in some prohibited activity.
The American Bar Association recently called for a warrant requirement for border searches of electronic devices because of the substantial privacy and confidentiality interests at stake. Prior to their call for an across-the-board warrant requirement, the ABA had also recognized the unique impact that border searches have on attorney-client information. The ABA argued that the DHS should revise CBP and ICE border search directives to require reasonable suspicion for an “advanced search,” and should adopt special protocols for the handling of attorney devices. But the DHS has still not revised all of its border search policies.
Plaintiff is a naturalized U.S. citizen and attorney who represents clients in proceedings against the United States. Plaintiff is a frequent international traveler for both work and personal purposes. Plaintiff’s cell phone was searched on several occassions without a warrant when Plaintiff re-entered the United States. On at least some of these occassions, the contents of his cell phones were copied and retained by border agents. Plaintiff stopped carrying his work phone on international trips to avoid the risk of the government accessing his clients’ confidential and privileged information.
U.S. District Court for the Northern District of Texas
Plaintiff filed a civil law suit against the United States to prohibit CBP and ICE from searching his cell phones without a warrant. Plaintiff moved for summary judgment or, in the alternative, a preliminary injunction based on his verified amended complaint. The court denied this motion, claiming that the factual record had not been fully developed. Defendants did not challenge any of Plaintiff’s allegations.
U.S. Court of Appeals for the Fifth Circuit
Plaintiff appealed the denial of his motion for summary judgment or a preliminary injunction on January 15, 2020. The appeal is pending.
EPIC routinely participates as amicus in cases concerning the application of constitutional law to new technology. EPIC filed amicus briefs in both Riley and Carpenter, and was cited twice in the Chief Justice’s opinion in Riley. Since the Court’s decision in Riley, EPIC has advocated for the application of the reasoning in cases such as Jackson v. McCurry, Apple v. FBI, and State v. Andrews.
U.S. Court of Appeals for the Fifth Circuit (No. 20-10059)