Crossing back to the USA from Mexico with your phone? You may want to know these facts, this new ruling has a potentially big implications in San Diego
The 9th Circuit says border officers must only search for digital contraband, not evidence of crimes
By Kristina Davis for BajaRacingNews.com
Shackled to a bench at the San Ysidro Port of Entry, Jeff Valenzuela was ordered by border officers to unlock his cellphone or else it would be seized. He complied and watched helplessly as it disappeared into a back room, where he assumes officers spent the next 45 minutes downloading its contents. The phone was returned, and the intimate details of his life — and the lives of those close to him — were now in the hands of the U.S. government. Valenzuela, a U.S. citizen and rights-group volunteer living in Tijuana, had been detained as part of a federal operation against a migrant caravan camped at the border. He was one of the nearly 41,000 international travelers whose electronic devices were searched at U.S. ports of entry in fiscal year 2019.
The Trump administration systematically went through every electronic device it could get its hands on
The cellphones of international travelers — and all of their digital contents — have long been fair game for U.S. border and customs officials to rifle through for inspection, for any reason, at any time, just as they would a purse or backpack. Not anymore. The 9th U.S. Circuit Court of Appeals, in an opinion stemming from a San Diego case, has significantly narrowed the ability of border officers to conduct warrantless searches of cellphones carried by international travelers, whether it be at land, air or sea ports of entry. The ruling prohibits the kind of fishing expeditions for intelligence or evidence of a crime — past or future, border-related or not — that prompted the kinds of warrantless searches in border zones that Valenzuela experienced in December 2018.
Instead, border officers now must limit their search for one thing: digital contraband — defined largely by the courts as child pornography, according to the ruling. The court ruling was issued in 2019, but it was only recently confirmed as law. Late last month, the U.S. Supreme Court denied the government’s petition to take up the case, meaning the 9th Circuit’s ruling is binding — but only in its jurisdiction. That includes nine states and two territories in the western U.S., including California, Arizona, Washington and Hawaii. “It really is tightening the screw to increase your protection from searches,” said Ryan Stitt, an attorney with Federal Defenders of San Diego who was involved in the case. The ruling has a potentially big implications in San Diego, home to the busiest land border crossing in the Western hemisphere — a portal not only to millions of legitimate travelers like Valenzuela but also part of a well-worn route for drug and human smugglers. Privacy advocates have hailed the case as a win for civil liberties, while the U.S. government — and some federal judges — say the decision makes the country less safe, letting potential evidence of drug smuggling to visa fraud to terrorist activity slip past border gatekeepers. The ruling also adds to a confusing matrix of clashing court opinions on the issue across the country. In practice, it could mean you are subjected to one set of rules returning from an international flight in San Diego and another in Boston.
The case stems from the 2016 arrest of Miguel Cano, who was caught at the San Ysidro Port of Entry with 31 pounds of cocaine hidden in a spare tire. Cano, a lawful permanent U.S. resident living in Tijuana, told investigators that he had crossed into San Diego to try to find work as a carpet installer. He denied knowing there were drugs in his vehicle. Two agents from Homeland Security Investigations took his cellphone. First one of the agents conducted a brief manual search, noticing the call log and lack of text messages. The agent later explained the search was “to find some brief investigative leads in the current case” and “to see if there’s evidence of other things coming across the border,” according to the court record. Then the other agent looked in the phone, writing down some of the numbers in the call log on a piece of paper and taking a photo of two text messages that had just come in. The agent then conducted a forensic search, hooking up the device to Cellbrite software, which allows the agent to access and download data including text messages, contacts, call logs, videos and photos. Cano was later indicted with importation of cocaine. He was convicted following a second trial; the first trial ended with a hung jury. A three-judge panel of the 9th Circuit deemed the searches a violation of Cano’s Fourth Amendment right against unreasonable search and seizure.
Digital contraband only
The Fourth Amendment largely requires a warrant to search someone’s possessions — including cellphones, according to a 2014 landmark Supreme Court ruling. But certain exceptions have historically existed at the border, where privacy concerns and public policy interests have long collided. Courts recognized that the United States has a long-standing right to protect itself by examining and controlling who and what comes into the country, and that people give up some expectation of privacy when passing through. “The whole idea is this strong public policy interest against contraband being smuggled in. It gives border officials greater authority to do warrantless searches,” said Stitt, Cano’s attorney at trial. “The question becomes how does that apply in the 21st century to digital contraband?” According to the 9th Circuit, the answer is: narrowly. The court held that “detection of ... contraband is the strongest historic rationale for the border-search exception” and that the exception does not stretch to include “search for evidence of contraband that is not present at the border” or for “evidence of past or future border-related” criminal activity. The opinion — penned by Circuit Judge Jay Bybee, a Bush nominee — concluded that “cellphone searches at the border, whether manual or forensic, must be limited in scope to a search for digital contraband.” He was joined in his opinion by Circuit Judge Susan Graber, a Clinton nominee, and Judge Douglas Harpool, an Obama nominee to the Missouri district bench who sat on the 9th Circuit panel by designation. Digital contraband has largely been defined in related court cases as child pornography, although in at least one legal filing U.S. Customs and Border Protection said it considers classified government material and malware to be in that category as well. What that means in practical terms: Border and immigration officers can manually search the devices of anyone crossing, without any level of suspicion — but they must only search for digital contraband, and only in places on the phone where such material would be stored. The court imposed even stricter limits on forensic, or advanced, searches, which involve officers hooking up the phone to extraction software. To do that, officers must have reasonable suspicion — a lesser standard of suspicion than probable cause, but still based on some fact or circumstance — that digital contraband exists on the phone. The search must still be only for that contraband. If border officials want to investigate a crime, they need to get a search warrant. “What Cano is really doing is making it so that they can only search for contraband on a phone, and really only child pornography,” Stitt said. “Before, in CBP’s view, they could search for anything, for any reason crossing the border, to any extent. This narrows that.” What happens if a border officer comes across evidence of a crime while searching for contraband? That is still somewhat of an open legal question, said Nathan Wessler an attorney with the American Civil Liberties Union. But the general rule should be to stop the search immediately and obtain a warrant to continue, he said. Practical effects CBP revised its directive on electronic device searches in 2018 to more closely adhere to some of the legal rulings being handed down, including requiring reasonable suspicion in order to conduct an advanced search. A CBP spokesperson said in a statement that the agency is continuing to review its directive and to conduct searches “in accordance with statutory and regulatory authorities and applicable judicial precedent,” including the Cano decision. Department of Justice attorneys argue the 9th Circuit’s ruling is an outlier when compared to past and current legal decisions on border searches. “The court’s decision confuses and disrupts the day-to-day work of border officials who, nationwide, inspect hundreds of millions of arriving travelers and examine tens of thousands of electronic devices each year,” attorneys argued in their petition to the Supreme Court. Of the more than 410 million travelers processed through air, land and sea ports of entry nationwide in fiscal 2019, 35 percent came through the 9th Circuit’s jurisdiction, according to court filings. Advertisement More than 51.6 million of those travelers came through the San Ysidro and Otay Mesa ports of entry, according to U.S. Department of Transportation border crossing data. CBP officials stressed that the number of device searches make up a small fraction — less than a hundredth of a percent — of the total number of crossings. “On rare occasions, CBP officers may search a traveler’s mobile phone, computer, camera and other electronic devices during the inspection process,” a CBP spokesperson said. “These searches have helped detect terrorist activity and other national security matters, child pornography, drug smuggling, human smuggling, bulk cash smuggling, human trafficking, export control violations, intellectual property rights violations and visa fraud.” But these searches have touched a broad spectrum of travelers — not just those caught with illicit loads. Migrants celebrate their arrival by climbing atop the U.S.-Mexico border fence at Playas The final group of migrants traveling in large numbers for safety arrives in Tijuana from Central America, with some celebrating their arrival by climbing atop the U.S.-Mexico border fence at Playas de Tijuana in November 2018. Several border activists, journalists and lawyers were targeted by border authorities who questioned them about their involvement with the migrants.
Journalists, political activists, lawyers and people in certain religious and ethnic groups have reported being told to hand over their devices at various ports of entry across the country, for no specific reason. In 2018, a secret joint U.S.-Mexico operation targeted human rights activists, immigration attorneys and journalists who were crossing the border frequently to interact with the large Central American migrant caravans that had arrived in Tijuana.
Federal authorities have said the individuals were suspected of colluding with the migrants or had intelligence on “criminal events” — accusations many of the targets have strongly denied. That’s why Valenzuela, a volunteer with migrant-rights group Pueblo Sin Fronteras and a photographer, was subjected to two cellphone searches upon crossing into San Diego. The first time, he was asked to show plainclothes officers his photo reel, to check if he had child porn on his phone, they told him. They made him pause at certain photos — which depicted migrants and had nothing to do with children or pornography — and they asked him to explain the images, he said. A few days later, he was detained, this time in handcuffs, and questioned again. When they ordered him to unlock the phone, he felt cornered and didn’t want to lose his phone, so he agreed. Then it was taken out of his sight.
Baja Racing News LIVE! previously reported on this topic
The U.S. Court of Appeals for the Ninth Circuit issued a new ruling in U.S. v. Cano that offers greater privacy protection for people crossing the border with their electronic devices, but it doesn’t go as far as others sought in their amicus brief. Cano had attempted to cross the border near San Diego when cocaine was found in his car. He was arrested at the port of entry and border agents manually and forensically searched his cell phone. He was prosecuted for importing illegal drugs and moved to suppress the evidence found on his phone. The Ninth Circuit held that the searches of his cell phone violated the Fourth Amendment and vacated his conviction. In U.S. v. Cotterman (2013), the Ninth Circuit had circumscribed the border search exception as it applies to electronic devices. The court held that the Fourth Amendment required border agents to have had reasonable suspicion—a standard between no suspicion and probable cause—before they conducted a forensic search, aided by sophisticated software, of the defendant’s laptop. Unfortunately, the Cotterman court also held that a manual search of a laptop is “routine” and so the border search exception applies: no warrant or any suspicion of wrongdoing is needed. In Cano, it was disappointing though not surprising that the three-judge panel reaffirmed Cotterman’s en banc rule and held that a manual search of a cell phone requires no suspicion while a forensic search requires reasonable suspicion. We argued in our amicus brief that the Ninth Circuit should revisit this issue and require a probable cause warrant for all border device searches, in light of the Supreme Court’s decision in Riley v. California (2014). In that watershed case, the Court acknowledged the extraordinary privacy interests people have in their cell phones, irrespective of how the devices are searched, and held that police must obtain a warrant to search the cell phone of an arrestee. On the bright side, the Cano court further held that warrantless, suspicionless border device searches—both manual and forensic—are only permissible under the Fourth Amendment to determine whether the device contains digital contraband. The court agreed with the arguments presented that the border search exception is “narrow,” being justified by the purpose of interdicting contraband and not simply finding evidence of illegal activity. Additionally, the court held with respect to forensic searches, “We clarify Cotterman by holding that ‘reasonable suspicion’ in this context means that officials must reasonably suspect that the cell phone contains digital contraband.” While experts still believe that electronic devices should fall outside the border search exception and thus require a warrant for search, limiting the scope of all device searches under the border search exception to looking for digital contraband is a good pro-privacy rule. The Cano court emphasized that border agents may not conduct warrantless, suspicionless border device searches “for evidence of past or future border-related crimes.” This is striking because we know from our civil case against the government, Alasaad v. Nielsen, that CBP and ICE agents do regularly conduct device searches (under the border search exception, they argue) to look for mere evidence of border-related crimes and in support of general law enforcement. The Cano rule means that border agents within the Ninth Circuit states can’t conduct broad-ranging fishing expeditions for digital data such as correspondence between the traveler and his associates, or metadata like location information. Such data might be evidence, but is not itself contraband. It’s important to note, however, that emails and text messages are not totally off limits. The Cano court noted that child pornography may be sent via email or text message, and so border device searches for digital contraband within these kinds of cell phone data are reasonable under the Fourth Amendment. As for Cano himself, the Ninth Circuit held that the recording of phone numbers and text messages during a manual search “had no connection whatsoever to digital contraband.” And while border agents “had reason to suspect that Cano’s cell phone would contain evidence leading to additional drugs,” the forensic search was unconstitutional because “the record does not give rise to any objectively reasonable suspicion that the digital data in the phone contained contraband.” The Cano court also stated that “the detection-of-contraband justification” for warrantless, suspicionless border device searches “would rarely seem to apply to an electronic search of a cell phone outside the context of child pornography.” We will advocate for courts to narrowly define the “digital contraband” that, under Cano, is the outer limit of the scope of warrantless, suspicionless border device searches. Experts continue to advocate for a warrant requirement.
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