EFF to Second Circuit: Electronic Device Searches at the Border Require a Warrant

EFF, along with ACLU and the New York Civil Liberties Union, filed an amicus brief in the U.S. Court of Appeals for the Second 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. Kamaldoss, involves the criminal prosecution of a man whose cell phone and laptop were forensically searched after he landed at JFK airport in New York City. 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. In part based on evidence obtained during the forensic device searches, Mr. Kamaldoss was subsequently charged with prescription drug trafficking.

The district court upheld the forensic searches of his devices because the government had reasonable suspicion that the defendant “was engaged in efforts to illegally import scheduled drugs from abroad, an offense directly tied to at least one of the historic rationales for the border exception—the disruption of efforts to import contraband.”

The number of warrantless device searches at the border and the significant invasion of privacy they represent is only increasing. In Fiscal Year 2023, U.S. Customs and Border Protection (CBP) conducted 41,767 device searches.

The 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 This article has been indexed from Deeplinks