SEARCH AND SEIZURE OF ELECTRONIC DEVICES AT THE BORDER Laura K Donohue I INTRODUCTION 1 II BORDER SEARCH AUTHORITIES RELATED TO CUSTOMS 4 A Commercial Regulation versus Revenue Generation 5 B Contraband in the Early American Republic 6 C Contemporary Search Authorities at Border Crossings 8 D Mail Search 10 E Special Protections Afforded the Home 11 F Extended Border Search and the Functional Equivalent 13 G Restrictions on Customs Searches Who and Why 14 III BORDER SEARCH AUTHORITIES RELATED TO IMMIGRATION 15 IV BORDER SEARCH OF ELECTRONIC DEVICES 17 A Not Subject to Reasonable Suspicion 18 B Supported by Reasonable Suspicion 19 C Special Protections Extended to Forensic Investigations 19 D Riley v California Stronger Constitutional Protections for Mobile Devices 21 E Impact of Carpenter v United States 23 F The Problem of Digitization 23 V CONCLUDING REMARKS 24 I INTRODUCTION Border searches of electronic devices are on the rise In 2015 U S Customs and Border Protection CBP examined 8 503 devices The number more than doubled the following year before soaring in 2017 to more than 30 000 searches 1 U S Immigration and Customs Enforcement ICE in turn reported the search of 4 444 cellphone and 320 other electronic devices in 2015 2 In 2016 ICE eclipsed these numbers searching 23 000 electronic devices 3 Three legal arguments support the examination of travelers’ digital data First conducted with an eye towards national security border searches are a concomitant of This statement is adapted from a draft of an essay that is forthcoming in the Yale Law Journal Forum Preferred Citation Laura K Donohue Electronic Search and Seizure at the Border 128 YALE L J F forthcoming Agnes N Williams Research Professor Director Center on National Security and the Law and Director Center on Privacy Technology Georgetown Law 1 U S Customs Border Prot CBP Releases Statistics on Electronic Device Searches CBP April 11 2017 https www cbp gov newsroom national-media-release cbp-releases-statistics-electronic-devicesearches-0 CBP Releases Updated Border Search of Electronic Device Directive and FY17 Statistics CBP Jan 5 2018 https www cbp gov newsroom national-media-release cbp-releases-updated-border-searchelectronic-device-directive-and U S CUSTOMS BORDER PROT BORDER SEARCH OF ELECTRONIC DEVICES CBP Directive No 3340-049A Jan 4 2018 https www cbp gov sites default files assets documents 2018CBP Jan CBP-Directive-3340-049A-Border-Search-of-Electronic-Media-Compliant pdf hereinafter DIRECTIVE 2 Daniel Victor What Are Your Rights if Border Agents Want to Search Your Phone N Y TIMES Feb 14 2017 https www nytimes com 2017 02 14 business border-enforcement-airport-phones html 3 Id 1 sovereignty and firmly within Article I and Article II powers 4 Second case law and statutory provisions recognize an exception to the warrant requirement and broad powers of search at the border Further Congress’s power to set the contours stems from the Commerce Clause 5 Third as an empirical matter the actual number of searches taking place is a drop in the sea of international travelers in 2017 CBP searched fewer than 1 100th of 1% of all travelers 0 007 percent 6 Weighed against the significant governmental interests at stake e g stopping terrorism catching individuals involved in human trafficking and child pornography and preventing individuals involved in international crime from entering the United States a balancing test favors broad authorities Arguments mounted against the government center on the nature of the information that can be obtained While the law focuses on material goods such as containers or suitcases 7 electronic devices contain enormous amounts of information about individuals’ private lives It includes not just data related to the actual crossing but details that stretch years into the past and generate insight into individuals’ relationships thoughts and beliefs As Chief Justice Roberts recognized in Riley v California mobile devices contain “the privacies of life ”8 In an increasingly globalized world allowing broad collection powers at the borders allows for an end-run around important Fourth Amendment protections Beyond this there are significant implications for citizens’ First Amendment rights of association and religion 5th Amendment due process rights and privilege against self-incrimination and 6th Amendment right to counsel The issue of electronic border search is complicated by parallel incursions by agencies into cloud data which occurs in one of two ways by using the device to access information held on the cloud or by requiring travelers to provide identifiers or handles or account login credentials such as usernames and passwords to access social media This issue appears to have first presented in December 2016 when CBP started asking 4 See e g CBP Jan Directive supra note 1 at para 4 “The plenary authority of the Federal Government to conduct searches and inspections of persons and merchandise crossing our nation’s borders is wellestablished and extensive control of the border is a fundamental principle of sovereignty ” citing United States v Flores-Montano 541 U S 149 153 2004 in support “ T he United States as sovereign has the inherent authority to protect and a paramount interest in protecting its territorial integrity ” See also United States v Ramsey 431 U S 606 620 1977 stating “ t he border-search exception is grounded in the recognized right of the sovereign to control subject to substantive limitations imposed by the Constitution who and what may enter the country ” id at 616 “That searches made at the border pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country are reasonable simply by virtue of the fact that they occur at the border should by now require no extended demonstration ” United States v Montoya de Hernandez 473 U S 531 537 1985 “Since the founding of our Republic Congress has granted the Executive plenary authority to conduct routine searches and seizures at the border without probable cause or a warrant in order to regulate the collection of duties and to prevent the introduction of contraband into this country ” Torres v Puerto Rico 442 U S 465 472– 73 1979 “The authority of the United States to search the baggage of arriving international travelers is based on its inherent sovereign authority to protect its territorial integrity By reason of that authority it is entitled to require that whoever seeks entry must establish the right to enter and to bring into the country whatever he may carry ” 5 See e g United States v 12 200-Ft Reels of Film 413 U S 123 125 1973 observing “searches of persons and packages at the national borders rest on different considerations…from domestic regulations The Constitution gives Congress broad comprehensive powers’ t o regulate commerce with foreign Nations ’ Art I Sec 8 cl 3 Historically such broad powers have been necessary to prevent smuggling and to prevent prohibited articles from entry ” 6 U S Customs Border Prot CBP Releases Updated Border Search of Electronic Device Directive and FY17 Statistics CBP Jan 5 2018 www cbp gov newsroom national-media-release cbp-releases-updatedborder-search-electronic-device-directive-and 7 Daniel Victor Forced Searches of Phones and Laptops at U S Border are Illegal Lawsuit Claims N Y TIMES Sept 13 2017 https www nytimes com 2017 09 13 technology aclu-border-patrol-lawsuit html 8 Riley v California 134 S Ct 2473 2495 2014 2 non-U S persons entering the country under the Visa Waiver Program VWP to disclose their social media identifiers 9 Initially the program was to be entirely voluntary With only the provider platform and social media identifier provided the government stated that it would only consider publicly-available information In January 2017 however the Council on AmericanIslamic Relations CAIR filed complaints with the U S Department of Homeland Security alleging that U S citizens were being directed to disclose not just their passwords to their phones but also their social media login information 10 Media reported that officials were considering new policies to expand CBP scrutiny of cloud content In February 2017 newly-appointed DHS Secretary John Kelly told a Congressional Committee that the agency might adopt a provision requiring login information from all foreign visa applicants with the failure to comply resulting in denial of entry Starting in May 2017 login information became required in cases tied to national security Less than a year later in March 2018 the U S Department of State submitted a formal proposal to the Office of Management and Budget requiring that almost all visa applicants list all social media identities used over the previous five years all telephone numbers all email addresses all international travel all prior immigration violations and whether specified family members have been involved in terrorist activity 11 The rule change would allow the government to vet and identify about 14 7 million people per year searching any social media platforms associated with the individual 12 The Executive Branch is divided in how it addresses border search of electronic devices In January 2018 CBP issued updated guidelines superseding the previous directive of August 2009 13 The new document explicitly excluded information held on the cloud from its search provisions 14 It distinguished between basic and advanced searches the latter involves connecting external equipment “to an electronic device not merely to gain access…but to review copy and or analyze its contents ”15 Officers must meet a standard of reasonable suspicion or instances “in which there is a national security concern ” 16 The equivalent 2009 ICE directive has not been updated since the last review 9 Under the VWP foreign citizens can visit the U S for up to 90 days without a visa if they have been cleared by the Electronic System for Travel Authorization 10 CAIR-FL files 10 complaints with CBP after the Agency Targeted and Questioned American-Muslims about Religious and Political Views CAIR Florida Jan 18 2017 https www cairflorida org newsroom press-releases 720-cair-fl-files-10-complaints-with-cbp-after-theagency-targeted-and-questioned-american-muslims-about-religious-and-political-views html See also Sophia Cope Fear Materialized Border Agents Demand Social Media Data from Americans ELECTRONIC FRONTIER FOUND Jan 25 2017 https www eff org deeplinks 2017 01 fear-materialized-border-agentsdemand-social-media-data-americans 11 U S Dep’t of State 83 Fed Reg 13807 13807-13808 proposed Mar 30 2018 12 Brendan O’Brien U S Visa Applicants to be Asked for Social Media History State Department REUTERS Mar 29 2018 https www reuters com article us-usa-immigration-visa u-s-visa-applicants-to-be-askedfor-social-media-history-state-department-idUSKBN1H611P Matthew Lee U S to Seek Social Media Mar 29 2018 Details from All Visa Applicants BLOOMBERG https www bloomberg com news articles 2018-03-29 us-to-seek-social-media-details-from-all-visaapplicants 13 CBP DIRECTIVE supra note 1 14 Id at para 5 1 2 “The border search will include an examination of only the information that is resident upon the device and accessible through the device’s operating system or through other software tools or applications Officers may not intentionally use the device to access information that is solely stored remotely To avoid retrieving or accessing information stored remotely and not otherwise present on the device Officers will either request that the traveler disable connectivity to any network e g by placing the device in airplane mode or where warranted…Officers will themselves disable network connectivity ” 15 Id at para 5 1 4 16 Id 3 in 2012 17 Like its CBP counterpart the directive applies to any item containing electronic or digital information 18 But unlike its counterpart it authorizes ICE Special Agents to “search detain seize retain and share electronic devices or information contained therein with or without individualized suspicion ” 19 Agents are not required to perform the search in the presence of the owner 20 Consent is not necessary 21 In addition “At any point during a border search electronic devices or copies of information therefrom may be detained for further review either on-site at the place of detention or at an off-site location ” 22 Searches can take place up to 30 days after the information is seized with continuations subject to supervisory approval every 15 days thereafter 23 The disjunction we are seeing between CBP and ICE reflect two historical streams of border search authorities customs and immigration 24 Their objects differ The first stems from efforts to prevent commercial goods from avoiding duties The second focuses on individuals i e who should or should not be admitted to the country In the post-9 11 environment a third novel approach has steadily entered the legal discussion seeking to use weaker Fourth Amendment protections at the borders as a way to combat all criminal activity Thus far the courts have provided a backstop rejecting some of the more egregious cases to come forward The lack of legislation is of particular concern as it leaves citizens’ privacy at the mercy of each agency’s regulatory regime The more recent cases of Riley v California and Carpenter v United States herald an evolving Supreme Court doctrine that is cognizant of the greater Fourth Amendment issues at stake in digital information Further First Amendment Fifth Amendment and Sixth Amendment concerns present II BORDER SEARCH AUTHORITIES RELATED TO CUSTOMS Historically the Executive Branch has had a wide latitude to conduct searches at the border without first establishing probable cause and obtaining a warrant 25 That breadth derives in part from the evolution of customs law During the early colonial period 17 U S IMMIGRATION CUSTOMS ENFORCEMENT ICE DIRECTIVE No 7-6 1 BORDER SEARCHES OF ELECTRONIC DEVICES Aug 18 2009 https www dhs gov xlibrary assets ice_border_search_electronic_devices pdf hereinafter 2009 ICE DIRECTIVE 18 Compare id at para 5 2 “Any item that may contain information such as computers disks drives tapes mobile phones and other communication devices cameras music players and any other electronic or digital devices ” with CBP DIRECTIVE supra note 1 at para 3 2 “Any device that may contain information in an electronic or digital form such as computers tablets disks drives tapes mobile phones and other communication devices cameras music and other media players ” 19 2009 ICE DIRECTIVE supra note 17 at para 6 1 20 Id at para 8 1 2 21 Id at para 8 1 3 22 Id at para 8 1 4 23 Id at para 8 3 1 24 Certain border search powers also derive from disease monitoring These areas of law however are less relevant to the search of electronic devices and so I do not address them here For further discussion of the evolution of quarantine authorities see generally Laura K Donohue Pandemic Disease Biological Weapons and War in LAW AND WAR 84 Austin Sarat Lawrence Douglas Martha Merrill Umphrey eds 2014 http scholarship law georgetown edu facpub 1296 Laura K Donohue Biodefense and Constitutional Constraints 4 NAT’L SEC ARMED CONFLICT L REV 82 2014 http scholarship law georgetown edu facpub 677 25 In Stacey v Emery the Supreme Court explained the contours of probable cause ‘If the facts and circumstances before the officer are such as to warrant a man of prudence and caution in believing that the offense has been committed it is sufficient ” 97 U S 642 645 1878 See also Locke v United States 11 U S 7 Cranch 339 1813 The George 10 Fed Cas 201 1815 No 5328 The Thompson 70 U S 3 Wall 155 1865 4 England considered customs in the context of commercial regulation—an opportunity to ensure dominance in shipping and trade Over time and particularly following the Seven Years’ War during which England developed substantial debt the approach shifted to using customs authorities as a way of generating revenue Officials obtained broad powers to interdict “uncustomed ” or illegal materials Following the American Revolution the latter emphasis survived laying the groundwork for today’s CBP authorities This history matters as it demonstrates both the purposes of customs searches i e to interdict uncustomed materials and so generate revenue as well as the special protections afforded the home even where customs issues arise Both aspects of customs searches serve as a limit on the border search exception A Commercial Regulation versus Revenue Generation The American colonies provided England with an opportunity to strengthen its global mercantile dominance From 1621 until 1756 the colonial power thus focused on how to structure its laws to control trade As early as 1621 the Privy Council recognized the gains at stake arguing that “the Commodities brought from” the colony of Virginia ought to be “appropriated unto his Majesties subjects” instead of being “communicated to forraine countries ” 26 Accordingly the council adopted an ordinance requiring that “all Tobacco and other commodities” from Virginia “not be carried into any forraine partes until the same have beene first landed here and his Majesties Customes paid therefore ”27 In the first Navigation Act of 1651 Parliament went on to require that any materials to or from the Americas be carried on English ships 28 The aim was to prevent European powers from trading with the colonies Following the Stuart Restoration in 1660 Parliament passed the second Navigation Act re-entrenching the rule that colonial trade only be carried out on English vessels they had to be English-owned operated by an English master and carry a crew of which three quarters must be English 29 The statute did not entirely prevent foreign imports into the colonies—it merely required that they be shipped under English flag Three years later Parliament addressed this oversight via the third Navigation Act requiring that any European commodities bound for the colonies first be taken to England unloaded and duties paid prior to their return to North America 30 The preamble to the statute underscored the importance of strengthening the connections between England and the colonies “keeping them in a firmer dependence upon” the Crown and ensuring that English shipping benefitted 31 The goal was to establish a monopoly over colonial trade The early navigation statutes reflected a fundamentally flawed assumption namely that most or all colonial trade involved overseas commerce 32 In the absence of regulation intra-colonial trade not subject to customs duties began to flourish with commodities eventually making their way to Europe “to the great Hurt and Diminution of” H M Customs and trade 33 Parliament closed this gap in the Navigation Act of 1673 26 THOMAS C BARROW TRADE EMPIRE THE BRITISH CUSTOMS SERVICE IN COLONIAL AMERICA 1660-1775 at 4 1999 27 Id 28 An Act for Increase of Shipping and Encouragement of the Navigation of this Nation 1651 2 ACTS ORDS INTERREGNUM 559-62 Eng 29 An Act for the Encouraging and Increasing of Shipping and Navigation of 1660 12 Car II c 18 Eng 30 An Act for the Encouragement of Trade 1663 15 Car II c 7 Eng 31 Id 32 BARROW supra note 26 at 6 33 9 CALENDAR TREASURY BOOKS 1965 William A Shaw eds 1904 http www britishhistory ac uk search series cal-treasury-books hereinafter C T B noting that “ t he act of 1673 did more to systemize the commercial activities of the colonists than did any other regulation of the navigation acts except the enumeration of which it was an integral part It affected not only the commercial relations 5 requiring that a bond be paid on enumerated items where the ship travelled between plantations 34 But the enforcement devices were weak They also differed from those in place in England In the late 17th century customs agents could search “any ship house or place soever” in London to search for prohibited goods 35 The Treasurer could provide a warrant to the customs commissions to examine trunks and boxes held at the Custom House in Southampton 36 There was no equivalent in the new world In the 18th Century Britain tried to tighten its hold assuming greater powers to search for and to seize contraband 37 Lord Grenville the First Lord of the Treasury and Chancellor of the Exchequer famously considered the colonies to be best source of the revenues needed charging the colonies with a failure to offset the costs of their own defense 38 Towards this end he repeatedly argued in Westminster for more stringent customs enforcement in North America Many agreed so when the Molasses Act expired Parliament passed a measure that emphasized both mercantilism and revenue generation The preamble to the American Revenue Act of 1764 a k a the Sugar Act explained “ I t is expedient that new provisions and regulations should be established for improving the revenue of this kingdom and for extending and securing the navigation and commerce between Great Britain and your Majesty’s dominions in America ” 39 This statute along with the Currency Act of 1764 in which Britain assumed control of the colonial system of currency laid the groundwork for the revolt that followed the introduction of the Stamp Act of 1765 40 B Contraband in the Early American Republic Following independence English mercantile ambitions fell away but like England following the Seven Years’ War the United States needed to raise revenue to pay for the recent war This required efficient enforcement mechanisms Thus from the earliest days of the Republic customs inspectors could board vessels to search for contraband without first obtaining a warrant To find the same items within a dwelling house building or between England and her colonies but also the relations of the colonies among themselves The new requirement made necessary the installation in colonial ports of a large number of customs officials whom there had been no need before appointed after 1696 on the English establishment by the customs commissioners under authority from the Treasury The business of these officials was to receive retain and if necessary prosecute the bonds in the common law courts and collect the duties which were supposed to be those of the English book of rates payable in silver or its equivalent at sterling values The object of the act was not revenue but the regulation of trade ” 34 Navigation Act of 1673 25 Car II c 7 Eng 35 Compare Entry Book October 1663 in 1 C T B 547 550 with Entry Book December 1661 in 1 C T B 311 315 directing John Seymour and Charles Smith “to search for all wares and merchandize mentioned in the royal proclamation of November 20 last for prohibiting the importation of divers foreign wares and merchandizes into this realm of England and Wales ” 36 Entry Book April 1661 in 1 C T B 232 236 37 GAUTHAM RAO NATIONAL DUTIES CUSTOMS HOUSES AND THE MAKING OF THE AMERICAN STATE 2016 38 Philip Lawson George Grenville and America The Years of Opposition 1765-1770 37 WM MARY Q 561 1980 39 An act for granting certain duties in the British colonies and plantations in America for continuing amending and making perpetual an act passed in the sixth year of the reign of his late majesty King George the Second for applying the produce of such duties and of the duties to arise by virtue of the said act towards defraying the expenses of defending protecting and securing the said colonies and plantations for explaining an act made in the twenty fifth year of the reign of King Charles the Second intituled An act for the encouragement of the Greenland and Eastland trades and for the better securing the plantation trade and for altering and disallowing several drawbacks on exports from this kingdom and more effectually preventing the clandestine conveyance of goods to and from the said colonies and plantation and improving and securing the trade between the same and Great Britain See also FRED ANDERSON The American Duties Act The Sugar Act in CRUCIBLE OF War THE SEVEN YEARS' WAR AND THE FATE OF EMPIRE IN BRITISH NORTH AMERICA 1754-1766 at 572 2000 40 Duties in American Colonies Act 1765 5 Geo III c 12 Eng 6 other place customs officers first had to obtain a warrant based upon “cause to suspect ” 41 In 1789 the same year that Congress passed the Bill of Rights to the states for ratification it enacted statutes setting duties establishing international ports of entry requiring vessels to report their contents and providing for inspectors to board vessels to examine whether the stated goods comported with the items on board 42 Under the Act of July 31 1789 officials could board any vessel “in which they shall have reason to suspect any goods wares or merchandise subject to duty shall be concealed and therein to search for seize and secure any such goods wares or merchandise ” 43 Where suspecting that such materials be concealed in a “dwelling house store building or other place ” they could apply to a justice of the peace for a warrant to conduct a search for the goods “and if any shall be found to seize and secure the same for trial ” 44 These statutes were followed by statutes in 1790 1793 and 1799 which underscored the importance of the enforcement of duties 45 So we find contemporaneous with the drafting and adoption of the Fourth Amendment the First Second and Fourth Congresses signaling that there was no need to obtain a warrant for goods subject to forfeiture when held in a ship or vessel however when held in a warehouse building or dwelling a warrant was required Congress continued to follow this line in the Act of July 18 1866 46 That statute made it lawful for any customs officer “to go on board of any vessel as well without as within his district and to inspect search and examine the same and any person trunk or envelope on board and to this end to hail and stop such vessel if under way and to use all necessary force to compel compliance ” 47 Where it appeared “that any breach or violation of the laws of the United States had been committed” whereby “such vessel 41 United States v Ramsey 431 U S 606 616 1977 An Act for laying a Duty on Goods Wares and Merchandizes imported into the United States Act of July 4 1789 §§ 1 3 4 ch 2 1 Stat 24 24-27 1789 setting duties An Act to regulate the Collection of the Duties imposed by law on the tonnage of ships or vessels and on goods wares and merchandises imported into the United States Act of July 31 1789 § 1 ch 5 1 Stat 29 29 1789 establishing districts ports and officers §2 establishing ports for non-U S vessels id §4 requiring master or commander of every ship or vessel to provide “a true manifest of the cargo on board such ship or vessel” id §5 empowering inspection of the vessels “to examine whether the goods imported are conformable to the entries thereof ” id §10 requiring that the master or commander of the vessel provide the manifest to the inspector with “a true account of the loading which such ship or vessel had on board at the port from which she last sailed and at the time of her sailing or at any time since the packages marks and numbers and noting thereon to what port in the United Stats such ship or vessel is bound and the name or names of the person or persons to whom the goods are consigned or in cases where the goods are shipped to order the names of the shippers ” id §12 prohibiting any goods wares or merchandise from being unladen or delivered from any ship or vessel at night or without a permit from the collector An Act for Registering and Clearing Vessels Regulating the Coasting Trade and for other purposes Sept 1 1789 § 3 ch 11 1 Stat 55 55-56 1789 empowering the surveyor to measure every vessel to ascertain its tonnage An Act to suspend part of an Act intitled ‘An Act to regulate the collection of the Duties imposed by Law on the Tonnage of Ships or Vessels and on Goods Wares and Merchandises imported into the United States ’ Sept 16 1789 §3 ch 15 1 Stat 69 69-70 1789 setting duties on certain foreign goods 43 Act of July 31 1789 ch 5 §§ 24 36 1 Stat 29 43 47 1789 current version codified at 19 U S C §§ 482 1582 44 Id 45 Act of Aug 4 1790 ch 35 §§ 48–51 1 Stat 145 170 1790 Act of February 18 1793 ch 8 §27 1 Stat 305 315 1793 Act of March 2 1799 ch 22 §§ 68–71 1 Stat 627 677 678 1799 See also Montoya de Hernandez 473 U S at 537 noting that Congress has always provided the Executive with plenary power to search and seize at the border absent probable cause or a warrant to regulate duties prevent introduction of contraband See also An Act further to regulate the entry of merchandise imported into the United States from any adjacent territory Mar 2 1821 ch 14 3 Stat 616 46 An Act further to prevent Smuggling and for other Purposes Act of July 18 1866 ch 201 14 Stat 178 47 Id § 2 42 7 or the goods wares and merchandise or any part thereof on board of or imported by such vessel is or are liable to forfeiture ” then the customs officer had the authority to seize the items 48 The statute also empowered officers to “arrest any person engaged in such breach or violation” and to pursue and arrest anyone who tried to escape 49 The officers could stop search and examine “any vehicle beast or person on which or whom he or they shall suspect there are goods wares or merchandise which are subject to duty or shall have been introduced into the United States in any matter contrary to law ” 50 The statute reflected the importance of securing things to demonstrate the illegal movement of uncustomed goods—namely the vehicle beast “goods wares merchandize and all other appurtenances including trunks envelopes covers and all means of concealment and all the equipage trappings or other appurtenances of such beast ” 51 C Contemporary Search Authorities at Border Crossings In 1930 the ill-fated Smoot-Hawley Tariff Act significantly increased tariffs on agricultural and industrial goods 52 Eight years later an amendment to the act also provided for special inspection examination and search authorities 53 As subsequently amended the law now reads Whenever a vessel from a foreign port or place or from a port or place in any Territory or possession of the United States arrives at a port or place in the United States or the Virgin Islands whether directly or via another port or place in the United States or the Virgin Islands the appropriate customs officer for such port or place of arrival may under such regulations as the Secretary of the Treasury may prescribe and for the purpose of assuring compliance with any law regulation or instruction which the Secretary of the Treasury or the Customs Service is authorized to enforce cause inspection examination and search to be made of the persons baggage and merchandise discharged or unladen from such vessel whether or not any or all such persons baggage or merchandise has previously been inspected examined or searched by officers of the customs 54 The law empowers customs officers at any time to board any vessel or vehicle within a customs-enforcement area established under the Anti-Smuggling Act 19 U S C 1701 et seq or at any other authorized place without as well as within his district and examine the manifest and other documents and papers and examine inspect and search the vessel or vehicle and every part thereof and any 48 Id Id 50 Id § 3 51 Id 52 Tariff Act of 1930 ch 497 46 Stat 590 codified at 19 U S C ch 4 See also Robert Whaples Where Is There Consensus Among American Economic Historians The Results of a Survey on Forty Propositions 55 J ECON HIST 139 151 1995 finding consensus among economic historians that the Act “exacerbated the Great Depression ” 53 Customs Administrative Act of 1938 ch 679 52 Stat 1077 1083 codified as amended at 19 U S C A § 1467 54 19 U S C § 1467 See also 19 U S C § 1496 “The appropriate customs officer may cause an examination to be made of the baggage of any person arriving in the United States in order to ascertain what articles are contained therein and whether subject to duty free of duty or prohibited notwithstanding a declaration and entry therefor has been made ” 19 U S C § 1499 providing for entry examination of imported merchandise 49 8 person trunk package or cargo on board and to this end may hail and stop such vessel or vehicle and use all necessary force to compel compliance 55 The Secretary of the Treasury may issue regulations for searching persons and baggage 56 Further “he is authorized to employ female inspectors for the examination and search of persons of their own sex and all persons coming into the United States from foreign countries shall be liable to detention and search by authorized officers or agents of the Government under such regulations ” 57 The border exception applies both to ingress and egress to and from the United States 58 The level of suspicion required to search travelers for illegal goods as they cross the border increases as the search becomes more intrusive Courts for instance do not require particularized suspicion for the contents of a traveler’s briefcase luggage purse or pockets 59 Nor is it required for documents contained within containers in such items 60 Pictures films and other graphic materials do not earn any higher level of protection 61 A pat-down warrants “minimal suspicion ” 62 In contrast the search of a travelers’ undergarments and strip searches require “real suspicion ” 63 The only context thus far recognized by the Supreme Court as requiring individualized suspicion is related to the intimate physical search of a woman believed to be smuggling drugs in her alimentary canal 64 In the 1985 case United States v Montoya de Hernandez customs officials suspected that a woman had swallowed balloons containing drugs 65 The Supreme Court determined that reasonable suspicion was required to detain the individual until the drugs had passed 66 This decision followed on a series of lower court cases rejecting mere suspicion for intrusive body searches requiring a “clear indication” or “plain suggestion” of criminal activity 67 55 19 U S C § 1581 a 19 U S C § 1582 Implementing regulations can be found at 19 C F R §§ 23 1 23 5 23 11 57 Id See Tariff Act of 1930 ch 497 § 582 46 Stat 590 748 58 United States v Oriakhi 57 F 3d 1290 4th Cir 1995 59 See e g United States v Tsai 282 F 3d 690 696 9th Cir 2002 Henderson v United States 390 F 2d 805 808 9th Cir 1967 But note that suspicion cannot be based merely on ancestry as a basis for detention and questioning See United States v Brignoni-Ponce 422 U S 873 1975 60 See United States v Grayson 597 F 2d 1225 1228–29 9th Cir 1979 61 United States v Thirty–Seven Photographs 402 U S 363 376 1971 62 See e g People of the Territory of Guam v Sugiyama 846 F 2d 570 572 9th Cir 1988 pat-down appropriate when suspect known to be connected to packages of marijuana previously sent to airport United States v Des Jardins 747 F 2d 499 504-05 9th Cir 1984 vacated in part 772 F 2d 578 9th Cir 1985 pat-down justified when objects frequently used in narcotics smuggling found in the traveler’s suitcase United States v Quintero-Castro 705 F 2d 1099 110-01 9th Cir 1983 pat-down appropriate where traveler paid cash for the ticket appeared nervous and story conflicted with co-traveler United States v Carter 563 F 2d 1360 1361 9th Cir 1977 pat-down appropriate when traveler appeared nervous and did not directly answer questions about trip United States v Rivera-Marquez 519 F 2d 1227 1228 9th Cir 1975 pat-down appropriate when informer told agents that individual with traveler’s name would be smuggling drugs on that day See also United States v Romero 71 F Supp 2d 1021 N D Cal 1999 patdown of traveler did not meet the minimal suspicion standard 63 Des Jardins 747 F 2d at 505 United States v Couch 688 F 2d 599 604 9th Cir 1982 United States v Guadalupe-Garza 421 F 2d 876 9th Cir 1970 64 United States v Montoya de Hernandez 473 U S 531 1985 65 Id 66 Id 67 See e g United States v Vance 62 F 3d 1152 9th Cir 1995 holding “real suspicion” was present when Mr Vance traveling from Hawaii to Guam underwent a pat-down search In that case a customs officer observed that the traveler was glassy-eyed disoriented and had trouble answering questions A pat-down revealed two pairs of underwear and a bulge at the traveler’s crotch When directed to drop his underwear two packs of methamphetamine fell out 56 9 Vehicles are subject to a much less rigorous standard than searches of the person In United States v Flores-Montano for instance reasonable suspicion was considered sufficient for removing a gas tank to search for contraband 68 The Supreme Court however has held open the possibility “that some searches of property are so destructive as to require” particularized suspicion 69 D Mail Search Customs officers by statute have the authority to stop and to search domestic mail headed outside the United States as well as foreign mail transiting the United States 70 The law is specifically tied to six areas exportation or importation of monetary instruments 71 material related to obscenity or child pornography 72 controlled substances 73 nuclear materials covered by the Export Administration Act 74 defense articles and services 75 and emergency matters that fall within the International Emergency Economic Powers Act such as foreign exchange transfers of credit or payments or the import or export of currency or securities 76 Mail that has not been sealed against inspection and to which the sender or addressee has consented a search can be examined 77 Mail weighing more than 16 ounces that has been sealed against inspection can only be opened and searched by a customs officer where there is reasonable grounds to suspect that it contains monetary instruments a weapon of mass destruction or material related to one of the six categories listed above 78 The law explicitly forbids reading any correspondence contained in mail sealed against inspection absent consent by the sender or addressee or a search warrant obtained consistent with rule 41 of the Federal Rules of Criminal Procedure 79 Customs officers do not have the authority to open and inspect mail weighing 16 ounces or less 80 A different provision in the code whose origins stem from 19th century statutes deals specifically with opening trunks or envelopes 81 The standard it sets is “reasonable cause ” The statutory language reads Any of the officers or persons authorized to board or search vessels may search any trunk or envelope wherever found in which he may have a reasonable cause to suspect there is merchandise which was imported contrary to law 82 68 United States v Flores-Montano 541 U S 149 2004 In this case the Ninth Circuit had taken the term “routine” from United States v Montoya de Hernandez created a balancing test and applied it to vehicle searches The Supreme Court objected determining that searches of vehicles were subject to a much less rigorous standard than searches of the person The 9th circuit went on in United States v Chaudhry 424 F 3d 1051 1054 9th Cir 2005 to find the distinction between “routine” and “non-routine” inapplicable to searches of property 69 Flores-Montano at 155–56 124 S Ct 1582 holding that complete disassembly and reassembly of a car gas tank did not require particularized suspicion 70 19 U S C § 1583 71 31 U S C § 5316 72 18 U S C §§ 1461 1463 1465 and 1466 73 21 U S C § 953 74 50 U S C §§ App 2401 et seq 75 22 U S C § 2778 76 50 U S C §§ 1701 1702 et seq 77 19 U S C § 1583 b 78 Id § 1583 c 1 79 Id § 1583 c 2 80 Id § 1583 d 81 Id § 482 re-codified Rev Stat §3061 which derived from the Act of July 18 1866 ch § 3 14 Stat 178 178 10 The Supreme Court has noted that the “reasonable cause to suspect” test presents “a less stringent requirement than that of ‘probable cause’ imposed by the Fourth Amendment as a requirement for the issuance of warrants ” 83 The Court has upheld this test as applied to border searches as constitutional 84 E Special Protections Afforded the Home As the Supreme Court noted in 1977 A port of entry is not a traveler's home 85 For the latter as a matter of law for centuries special protections have applied From the time of Coke’s Institutes and arguably Magna Carta forward outside of a fleeing felon or the hue and cry common law forbade access to the home absent a warrant 86 The need for such a document pushed on what precisely would satisfy the requirement As the Crown made increasing use of general warrants treatise writers and jurists roundly condemned the practice as unreasonable—i e against the Reason of the common law 87 Only particular warrants issued by a magistrate naming the individual establishing probable cause for a specific crime and supported by oath or affirmation met the standard 88 The U S founders incorporated this common law rule into the Bill of Rights The right of the people to be secure in their persons houses papers and effects against unreasonable searches and seizures shall not be violated and no Warrants shall issue but upon probable cause supported by Oath or affirmation and particularly describing the place to be searched and the persons or things to be seized 89 It is important here to remember the mere evidence rule which similarly continued the common law tradition and did not fall out of favor in the United States until 1967 just a few months prior to Katz v United States 90 This rule made it clear that even with a particularized warrant there were certain things that the government could not obtain because it interfered with the privacies of life The court thus drew a distinction between the fruits and instrumentalities of crime on the one hand and other types of materials In Boyd v United States Justice Bradley explained for the Court The search for and seizure of stolen or forfeited goods or goods liable to duties and concealed to avoid the payment thereof are totally different things from a search for and seizure of a man's private books and papers for the purpose of obtaining information therein contained or of using them as evidence against him The two things differ toto coelo In the one case the government is entitled to the possession of the property in the other it is not 91 This distinction reflects in the customs law tradition 82 Id § 482 United States v Ramsey 431 U S 606 612 1977 84 Id 85 Id at 618 1980 quoting United States v Thirty-Seven Photographs 402 U S 363 376 1971 86 Laura K Donohue The Original Fourth Amendment 83 CHI L REV 1181 2016 87 Id 88 Id 89 U S CONST amend IV 90 Katz v United States 389 U S 347 1967 91 Boyd v United States 116 U S 616 623 1886 83 11 The seizure of stolen goods is authorized by the common law and the seizure of goods forfeited for a breach of the revenue laws or concealed to avoid the duties payable on them has been authorized by English statutes for at least two centuries past and the like seizures have been authorized by our own revenue acts from the commencement of the government The first statute passed by Congress to regulate the collection of duties the Act of July 31 1789 1 Stat 29 43 contains provisions to this effect As this act was passed by the same Congress which proposed for adoption the original amendments to the Constitution it is clear that the members of that body did not regard searches and seizures of this kind as ‘unreasonable ’ and they are not embraced within the prohibition of the amendment …So also the laws which provide for the search and seizure of articles and things which it is unlawful for a person to have in his possession for the purpose of issue or disposition such as counterfeit coin lottery tickets implements of gambling etc are not within this category Many other things of this character might be enumerated 92 In other words Congress and the Courts drew a clear distinction between a store or dwelling house or other structure for which a proper warrant was required and the search of a ship motorboat wagon or automobile where it was not practicable to obtain a warrant because the vehicle could be quickly moved Thus under the Act of March 3 1815 it was not only lawful to board and search vessels within the customs’ officers’ districts and those adjoining but also to stop and search any vehicle beast or person for whom there was probable cause to believe unlawful goods had unlawfully been brought into the United States 93 The Court and the government considered it a valid exercise of constitutional power 94 To the extent that a question of distance from the border arose in the 19th century the Attorney general drew the line at three miles 95 In this way the border exception bore a striking resemblance to the fleeing felon exception it was only in the process of hot pursuit of goods illegally brought into the country that broader powers applied But limits applied It would be intolerable and unreasonable if a prohibition agent were authorized to stop every automobile on the chance of finding liquor and thus subject all persons lawfully using the highways to the inconvenience and indignity of such a search Travelers may be so stopped in crossing an international boundary because of national self-protection reasonably requiring one entering the country to identify himself as entitled to come in and his belongings as effects which 92 Id at 623-24 internal citations omitted Act of Mar 3 1815 ch 94 3 Stat 231 232 For total or partial renewals of the statute see Act of Apr 27 1816 ch 110 3 Stat 315 Act of Feb 28 1865 ch 67 13 Stat 441 Act of July 18 1866 c 201 14 Stat 178 section 3061 of the Revised Statutes 94 Cotzhausen v Nazro 107 U S 215 1883 See also United States v One Black Horse 129 F 167 D Me 1904 Similar provisions applied to Indian agents who suspecting the introduction of alcohol could cause the boats stores packages wagons sleds and places of deposit of such person to be searched and seized Rev Stat § 2140 1875 This power arose from an 1822 statute which allowed for traders’ goods to be searched seized on basis of suspicion of alcohol Act of May 6 1822 ch 58 3 Stat 682 as well as the Act of June 30 1834 § 20 ch 161 4 Stat 729 732 The Supreme Court recognized the Statute of 1822 as sufficient for search and seizure in American Fur Co v United States 27 U S 2 Pet 358 All statutes cited and discussed in Carroll v United States 267 U S 132 1925 95 Section 174 of Act of Mar 3 1899 ch 429 30 Stat 1254 1280 The Attorney General construing the Act wrote “If your agents reasonably suspect that a violation of law has occurred in my opinion they have power to search any vessel within the three-mile limit according to the practice of customs officers when acting under section 3059 of the Revised Statutes Comp St § 5761 and to seize such vessels ’ 26 Op Attys Gen 243 Cited and quoted in Carroll 267 U S at 153 93 12 may be lawfully brought in But those lawfully within the country entitled to use the public highways have a right to free passage without interruption or search unless there is known to a competent official authorized to search probable cause for believing that their vehicles are carrying contraband or illegal merchandise 96 In Carroll v United States the Court noted the necessity of establishing probable cause of a felony for a search that occurred away from the border The border was only relevant insofar as it helped to establish probable cause 97 Reflecting these traditions the current state of play as both a statutory and a doctrinal matter is that customs searches of homes require a warrant issued by a third party federal judge or magistrate and supported by probable cause that merchandise has been illegally brought into the United States or that the goods in question are subject to forfeiture 98 The search of vehicles or vessels however is not limited to the time and place of actual international crossings 99 F Extended Border Search and the Functional Equivalent For searches away from ports of entry courts look at whether such actions can be upheld as “extended border searches” as well as whether they take place at the “functional equivalent” of the border 100 Airports for instance are considered the functional equivalent of the border 101 The validity of such searches depends upon a variety of factors suggesting a totality of circumstances test As with searches at the actual border the Fourth Amendment standard of “reasonableness” still applies however mere suspicion is sufficient 102 96 Carroll 267 U S at 153-54 Id at 160 98 19 U S C § 1595 99 Id § 482 “ a Any of the officers or persons authorized to board or search vessels may stop search and examine as well without as within their respective districts any vehicle beast or person on which or whom he or they shall suspect there is merchandise which is subject to duty or shall have been introduced into the United States in any manner contrary to law whether by the person in possession or charge or by in or upon such vehicle or beast or otherwise and to search any trunk or envelope wherever found in which he may have a reasonable cause to suspect there is merchandise which was imported contrary to law and if any such officer or other person so authorized shall find any merchandise on or about any such vehicle beast or person or in any such trunk or envelope which he shall have reasonable cause to believe is subject to duty or to have been unlawfully introduced into the United States whether by the person in possession or charge or by in or upon such vehicle beast or otherwise he shall seize and secure the same for trial b Any officer or employee of the United States conducting a search of a person pursuant to subsection a of this section shall not be held liable for any civil damages as a result of such search if the officer or employee performed the search in good faith and used reasonable means while effectuating such search ” This section dates back to Act of March 3 1815 ch 94 3 Stat 231 232 Act of July 18 1866 ch 201 14 Stat 178 100 United States v Carter 760 F 2d 1568 11th Cir 1985 Torres v Puerto Rico 442 U S 465 1979 Search of individual arriving in Commonwealth of Puerto Rico from the United States not satisfied because no functional equivalent to international border of the United States 101 Almeida–Sanchez v United States 413 U S 266 273 1973 “For example a search of the passengers and cargo of an airplane arriving at a St Louis airport after a non-stop flight from Mexico City would clearly be the functional equivalent of a border search ” 102 Alexander v United States 362 F 2d 379 9th Cir 1966 citing Cervantes v United States 263 F 2d 800 803 n 5 9th Cir 1959 Carroll v United States 267 U S 132 154 1925 Boyd v United States 116 U S 616 623 1886 Hammond v United States 356 F 2d 931 9th Cir 1966 King v United States 348 F 2d 814 817 9th Cir 1965 Jones v United States 326 F 2d 124 130 9th Cir 1964 Duniway J concurring Denton v United States 310 F 2d 129 9th Cir 1962 Mansfield v United States 308 F 2d 221 5th Cir 1962 Plazola v United States 291 F 2d 56 9th Cir 1961 Witt v United States 287 F 2d 389 9th Cir 1961 Murgia v United States 285 F 2d 14 9th Cir 1960 Landau v United States Attorney 82 97 13 In cases of continuous surveillance of vehicles transiting the border the lower courts have upheld searches 20 miles from the border that occur 15 hours after entry 103 On the other hand for roving searches the Supreme Court has held that a warrantless search 25 miles north of the border on an East-West Highway located at all points at least 20 miles from border absent probable cause and reasonable suspicion was invalid 104 There is no border exception outside the actual border or its functional equivalent 105 G Restrictions on Customs Searches Who and Why The Courts have held that an “officer of the customs” includes customs officers inspectors investigators and mail entry aids certain Immigration and Naturalization Service officials e g border patrol agents and Coast guard officers 106 It has also included a doctor aiding a customs search The right to undertake border searches does not extend to the FBI or to law enforcement when acting for general law enforcement purposes Thus In the 1979 case of United States v Vidal Soto-Soto the 9th Circuit considered the FBI’s warrantless search of a Chevrolet pickup truck at the border to determine whether it had been stolen 107 The agent’s sole basis for stopping the truck was due to the make and model of the vehicle 108 The Court looked to the Supreme Court’s recent decision in Delaware v Prouse in which it had required articulable and F 2d 285 2nd Cir 1936 United States v Wischerth 68 F 2d 161 2d Cir 1933 United States v Yee Ngee How 105 F Supp 517 N D Cal 1952 103 See e g King v United States 348 F 2d 814 9th Cir 1965 cert denied 382 US 926 customs agent based on a tip followed car at Tijuana crossing Leeks v United States 356 F 2d 470 9th Cir 1966 upholding search 15 miles north of San Ysidro border entry continuous tailing Alexander v United States 362 F 2d 379 9th Cir 1966 cert denied 385 U S 977 heroin discovered after placing vehicle crossing into Arizona after surveillance with only a one or two minute break reasoning that by statute customs officers had long had the express authority to stop search examine vehicles suspected of carrying merchandise subject to duty making it possible for them to do what would be “unreasonable” for police supported by courts use a totality of the circumstances—e g time distance manner and extent of surveillance etc Lee v United States 376 F2d 98 9th Cir 1967 cert denied 389 U S 837 customs agent acting on tip placed car from Mexico under surveillance arrested and found narcotics—upheld because continuously under surveillance Rodriguez-Gonzalez v United States 378 F2d 256 9th Cir 1967 mere suspicion acceptable for search that took place 15 hours and 20 miles from the border found marijuana hidden in rear door met totality of the circumstances test—time and distance extent and manner constant surveillance until car stopped a few miles north of San Diego Gonzalez-Alonso v United States 379 F 2d 347 9th Cir 1967 marijuana followed from border stopped and searched 11 miles inland found valid applying totality of the circumstances test Bloomer v United States 409 F 2d 869 9th Cir 1969 Oldsmobile with marijuana under constant surveillance from time it crossed the border 104 Almeida-Sanchez v United States 413 U S 266 1973 In Almeida-Sanchez a Mexican citizen with a valid U S work permit was convicted for possession and transfer of marijuana following a warrantless search of his automobile 413 U S at 267 The government argued that the Immigration and Nationality Act which provided for warrantless searches “within a reasonable distance defined by regulations as 100 air miles from any external boundary” authorized the search Immigration and Nationality Act § 287 a 3 codified at 8 U S C A § 1357 a See also 8 C F R § 287 1 cited in Almeida-Sanchez 413 U S at 268 In a 5-4 opinion the Supreme Court ruled that the statute and regulation were inconsistent with the Fourth Amendment While border searches could take place at functional equivalent of the border searches within 100 miles of the border violated the reasonableness clause The Court also held that the search could not be justified on the basis of the rules applied to search of automobiles In Carroll v United States the Court had upheld the clause in the Volstead Act that allowed for warrantless search of automobiles where probable cause existed that the vehicle in question contained illegal alcoholic beverages 267 U S 132 1925 In this case however the standard of probable cause had not been met 105 United States v Ortiz 422 U S 891 1975 106 See also 19 U S C A § 1401 i 107 United States v Vidal Soto-Soto 598 F 2d 545 546 9th Cir 1979 108 Id 14 reasonable suspicion that a motorist was unlicensed or an automobile not registered to detain a vehicle and request the registration papers 109 The reason for the broader authority granted to customs officers than to ordinary law enforcement is because the basic purpose behind a border search is to obtain things illegally brought into the country As the 9th circuit noted “Validity for this distinction is found in the fact that the primordial purpose of a search by customs officers is not to apprehend persons but to seize contraband property unlawfully imported or brought into the United States ” 110 The Court observed “The authorization of section 581 19 USC §1581 is to ascertain whether there are any dutiable articles concealed in the vessel it is not to discover acts of criminality If by chance contraband merchandise or dutiable articles are discovered then the Coast Guard officer must arrest any person connected with the smuggling of such merchandise ” 111 The purpose is “to effectuate the provisions of the navigation and tariff laws and to protect the revenue of the United States Congress by section 581 of the Tariff Act 1930 ” 112 The purpose of customs law is not to deter criminal activity writ large 113 III BORDER SEARCH AUTHORITIES RELATED TO IMMIGRATION Immigration law has a considerably different history and appears in a different area of the code This history sheds light on the differences between CBP and ICE in terms of their regulations It is also a doctrine fraught with contradictions On the one hand more than a century ago the plenary power doctrine emerged rejecting any constitutional challenge to Congress’s initial immigration laws 114 In Chae Chan Ping v United States the Court stated that although the Constitution did not explicitly address immigration Congress had the general power to pass a statute amending prior Treaties and excluding Chinese citizens 115 Justice Field writing for the Court said “The question whether our government is justified in disregarding its engagements with another nation is not one for the determination of courts ” 116 The decision fell to the political branches rendering any judicial “reflection upon Congress’s motives or the motives of any of its members ” immaterial 117 That the government of the United States through the action of the legislative department can exclude aliens from its territory is a proposition which we do not think open to controversy Jurisdiction over its own territory to that extent is an incident of every independent nation It is a part of its independence If it could not exclude aliens it would be to that extent subject to the control of another power 118 109 Delaware v Prouse 440 U S 648 1979 Alexander v United States 362 F 2d 379 382 1966 See also The Atlantic Olson v United States 68 F 2d 8 2d Cir 1933 111 Atlantic Olson 68 at 9 112 Id at 10 113 But note that seizure may rest on a violation of criminal law See Maul v United States 274 U S 501 1927 Wood v United States 41 U S 342 1842 Awalt v United States 47 F 2d 477 3d Cir 1931 114 Chae Chan Ping v United States 130 U S 581 1889 See also Hiroshi Motomura Immigration Law After a Century of Plenary Power Phantom Constitutional Norms and Statutory Interpretation 100 YALE L J 545 1990 115 Id An act to Execute Certain Treaty Stipulations Relating to Chinese May 6 1882 ch 1 22 Stat 58 116 Id at 602 117 Id citing Taylor v Morton 23 F Cas 784 C C D Mass 1855 aff'd 67 U S 481 1862 118 Id at 603-604 110 15 Such authority was part of the foreign affairs power of any country found in the interstices of Article I 8 and Article II 119 Over time however the rule that the executive branch and Congress have absolute authority over immigration decisions has eroded 120 Thus while entry without the appropriate status may be unlawful the Supreme Court has held that a child’s immigration status cannot impact their access to public elementary and secondary education 121 Professor Hiroshi Motomura has argued that the gap between the Court and the dissent in that case stems from disparate views of immigration outside legal constraints namely a contribution to the economy and society versus “egregious lawbreaking ” 122 Further complicating the debate is the role of states and cities as well as how and whether to integrate unlawful immigrants—including and up to providing a path to formal citizenship 123 Questions of individual rights have gained ground U S citizens and individuals with a substantial connection to the United States benefit from the protections of the Fourth Amendment 124 Non-U S persons however have no such rights Immigration officials thus have much broader authorities as to aliens As a matter of statutory law Any officer or employee of the Service authorized under regulations prescribed by the Attorney General shall have power without warrant— 1 to interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States 2 to arrest any alien who in his presence or view is entering or attempting to enter the United States in violation of any law or regulation made in pursuance of law regulating the admission exclusion expulsion or removal of aliens or to arrest any alien in the United States if he has reason to believe that the alien so arrested is in the United States in violation of any such law or regulation and is likely to escape before a warrant can be obtained for his arrest but the alien arrested shall be taken without unnecessary delay for examination before an officer of the Service having authority to examine aliens as to their right to enter or remain in the United States 3 within a reasonable distance from any external boundary of the United States to board and search for aliens any vessel within the territorial waters of the United States and any railway car aircraft conveyance or vehicle and within a distance of twenty-five miles from any such external boundary to have access to private lands but not dwellings for the purpose of patrolling the border to prevent the illegal entry of aliens into the United States 119 Id at 604 “The powers to declare war make treaties suppress insurrection repel invasion regulate foreign commerce secure republican governments to the states and admit subjects of other nations to citizenship are all sovereign powers restricted in their exercise only by the constitution itself and considerations of public policy and justice which control more or less the conduct of all civilized nations” 120 See id at 549 “Immigration law as it has developed over the past one hundred years under the domination of the plenary power doctrine represents an aberrational form of the typical relationship between statutory interpretation and constitutional law The aberrant quality is attributable to the prolonged nature of the contradiction between these two sets of “constitutional” norms in immigration law The constitutional norms that courts use when they directly decide constitutional issues in immigration cases are not the same constitutional norms that inform interpretation of immigration statutes To serve the latter function many courts have relied on what I call “phantom constitutional norms ” which are not indigenous to immigration law but come from mainstream public law instead The result has been to undermine the plenary power doctrine through statutory interpretation internal citations omitted 121 Plyler v Doe 457 U S 202 1982 122 Hiroshi Motomura Immigration Outside the Law 108 COLUM L REV 2037 2008 123 Id 124 United States v Verdugo-Urquidez 494 U S 259 1990 16 4 to make arrests for felonies which have been committed and which are cognizable under any law of the United States regulating the admission exclusion expulsion or removal of aliens if he has reason to believe that the person so arrested is guilty of such felony and if there is likelihood of the person escaping before a warrant can be obtained for his arrest but the person arrested shall be taken without unnecessary delay before the nearest available officer empowered to commit persons charged with offenses against the laws of the United States and 5 to make arrests for any offense against the United States or felony if the officer or employee is performing duties relating to the enforcement of the immigration laws at the time of the arrest and if there is a likelihood of the person escaping before a warrant can be obtained for his arrest 125 The law recognizes the protected status of the home requiring either consent or a properly-executed warrant to enter onto farm land or any agricultural operation to interrogate individuals as to their right to be in the United States 126 As for “reasonable distance ” lower courts have held that this provision which allows the Attorney General to ascertain how far from the border probable cause and a warrant is not required is not unconstitutional because it does not insert a neutral magistrate into the review process 127 In terms of searches at the border itself Any officer or employee of the immigration s ervice authorized and designated under regulations prescribed by the Attorney General whether individually or as one of a class shall have power to conduct a search without warrant of the person and of the personal effects in the possession of any person seeking admission to the United States concerning whom such officer or employee may have reasonable cause to suspect that grounds exist for denial of admission to the United States under this chapter which would be disclosed by such search 128 The standard is thus one of “reasonable cause ” Congress to date has not made any special exceptions for the personal effects that may be searched with the result that as noted in the introduction guidance on electronic devices has been left to the agencies themselves IV BORDER SEARCH OF ELECTRONIC DEVICES There are increasing calls in the public to exempt electronic devices from the border search exception The argument put forward is that these devices contain a tremendous amount of private information Prior to the Supreme Court’s decisions in Riley v California United States v Jones and Carpenter v United States courts generally rejected the argument based either on the grounds that the search was routine and did not require reasonable suspicion pursuant to the border search exception or that it was conducted with reasonable suspicion However three courts determined that forensic examination requires a higher standard than exists in the ordinary border search exception Following Riley Jones and Carpenter moreover there is every reason to 125 8 U S C A § 1357 a 8 U S C A § 1357 e 127 United States v King 485 F 2d 353 10th Cir 1973 rev’d on other grounds Bowen v United States 422 U S 916 1975 128 8 U S C A § 1357 c 126 17 believe that the Fourth Amendment places a limit on the search of electronic devices at least as to U S persons and individuals who have a substantial connection to the United States A Not Subject to Reasonable Suspicion Although the Supreme Court in Flores-Montano left open the possibility under certain circumstances of requiring reasonable suspicion for particular property searches at the border some courts have considered the search of electronic devices to fall within the ordinary border search exception 129 In United States v Arnold for instance a traveler arrived at LAX after a nearly twenty-hour flight from the Philippines 130 When he went to clear customs CBP pulled him aside for secondary questioning inspected his luggage and found a laptop a separate hard drive a USB stick and six disks Agents directed Mr Arnold to turn on his computer On the desktop there were folders labeled “Kodak Pictures” and “Kodak Memories ” When agents opened the folders they found naked women CBP called in DHS and ICE who believing the pictures to include children detained and questioned him They seized his computer and the storage devices and a fortnight later obtained a warrant DOJ charged Michael Arnold with transporting child pornography Despite the considerable amount of information that could be held on the computer the court did not see any Fourth Amendment concerns Neither of the two narrow grounds laid out by the Supreme Court in Flores-Montano that would require reasonable suspicion “exceptional damage to property” or “particularly offensive manner” applied 131 “ W e are satisfied that reasonable suspicion is not needed for customs officials to search a laptop or other personal electronic storage devices at the border ” 132 When a similar case arose in regard to fraudulent alien cards which were found on a traveler’s hard drive while crossing the border the Ninth Circuit considered the requirement of reasonable suspicion to be foreclosed by Arnold 133 The Fourth Circuit reached a similar conclusion in United States v Ickes 134 In that case the defendant driving a van that appeared to be packed with everything he owned crossed the U S Canadian border A search of the van uncovered a video camera with a tape of a tennis match in which the camera was focused on a young ball boy Border agents found marijuana seeds and pipes and several photo albums of child pornography They also found a computer and 75 diskettes with additional child pornography on them The court found the search permissible Both Congress and the Supreme Court have made clear that extensive searches at the border are permitted even if the same search elsewhere would not be We refust to undermine this well-settled law by restrictively reading the statutory language in 19 U S C 1581 a or by carving out a First Amendment exception to the border search doctrine 135 At least one other published lower court published opinion has reached a similar conclusion 136 129 See United States v Flores-Montano 541 U S 149 155-56 2004 United States v Arnold 533 F 3d 1003 9th Cir 2008 cert denied 129 S Ct 1312 2009 131 Id at 1008-09 132 Id at 1009 133 United States v Singh 295 Fed App’x 190 9th Cir 2008 134 United States v Ickes 393 F 3d 501 4th Cir 2005 135 Id at 502 136 See e g United States v McAuley 563 F Supp 672 W D Tex 2008 A name check on a driver crossing at Del Rio Texas Port of entry from Mexico showed that the individual was the subject of an 130 18 B Supported by Reasonable Suspicion Two categories of cases have found the search of electronic devices to be supported by reasonable suspicion those premised on criminal investigations and records and those based on the presence of illegal substances In United States v Hassanshahi for example a 2014 case from Washington D C a traveler’s laptop was seized during an international border stop at a U S airport 137 An inquiry into the traveler’s identity revealed a federal investigation into the defendant’s participation in a conspiracy to build a computer production facility in Iran in violation of U S trade embargoes The court in that case considered agents to have established reasonable suspicion sufficient to support a forensic examination of the laptop Similarly in United States v Saboonchi the traveler’s name came up in connection with two different export violation investigations 138 The government had information that the defendant had purchased two cyclone separators which had then been shipped overseas to an entity linked to a company in Iran The court determined that the forensic search of the defendant’s smart phone and flash drive had been supported by reasonable suspicion Pari passu in Cotterman border agents had reasonable suspicion for their initial search based on the fact that the defendant had a prior conviction for child molestation frequently traveled to a country associated with sex tourism and carried password-protected files A handful of lower courts have found the presence of illegal substances during the search to be sufficient for the examination of electronic devices 139 C Special Protections Extended to Forensic Investigations One of the most prominent cases on the forensic investigation of electronic devices at the border comes from the Ninth Circuit In United States v Cotterman agents entered a traveler’s name into the Treasury Enforcement Communication System TECS which revealed a 15-year old child sexual molestation charge Agents referred the defendant and his wife for secondary questioning ordering them to leave their car and belongings behind A search of the vehicle yielded two laptop computers with password-protected files The defendant offered to assist agents in accessing the information but the agent declined because of concern that the defendant would use the opportunity to sabotage the investigation in New York involving child pornography The defendant was referred to secondary inspection where two hours later ICE began to question him about his computer equipment including a zip drive and two external hard drives as well as a laptop that had been observed in vehicle He consented to the search and provided them with the password whereupon they found child pornography on the device The court rules the search constitutional See also United States v Hampe Crim No 07-3-B-W 2007 WL 1192365 D Me Apr 18 2007 The court in this case held that the search of a laptop was a routine search and no reasonable suspicion was required but it then concluded that the particular facts of the case gave rise to reasonable suspicion that child pornography was involved 137 United States v Hassanshahi 75 F Supp 3d 101 D D C 2014 138 United States v Saboonchi 990 F Supp 2d 536 D Md 2014 139 See e g United States v Molina-Isidoro 267 F Supp 3d 911 W D Tex 2016 mobile phone searched with reasonable suspicion at Mexican border after agents found methamphetamine in the traveler’s suitcase United States v Mendez 240 F Supp 3d 1005 D Ariz 2017 mobile phone search at border after finding drugs in the car considered to have been conducted with reasonable suspicion United States v Cano 222 F Supp 3d 876 S D Cal 2016 agents finding 16 kg of cocaine in the spare tire of the defendant’s truck had reasonable suspicion to download mobile phone data on grounds that it had been used as an instrumentality of the crime United States v Ramos 190 F Supp 3d 992 S D Cal 2016 agents found methamphetamine in the car and questioned defendant who said he been in cell phone communication with person to whom he was reporting court determined that DHS manual search of phone and examination of incoming calls text messages and the call log was reasonable United States v Caballero 178 F Supp 3d 1008 S D Cal 2016 CBP found illegal drugs in defendant’s car and searched the defendant’s mobile phone which had photos of large sums of money the court said reasonable particularized suspicion present 19 files Agents seized the computers and transported them to Tucson 150 miles away for forensic evaluation After three days seventy-five images of child pornography had been found The court determined that border searches were limited in time and distance agents needed to have reasonable suspicion that the subject was involved in criminal activity Mere suspicion was not enough 140 The court recognized the unique nature of the type of information contained in electronic devices The amount of private information carried by international travelers was traditionally circumscribed by the size of the traveler's luggage or automobile This is no longer the case Electronic devices are capable of storing warehouses full of information Laptop computers iPads and the like are simultaneously offices and personal diaries They contain the most intimate details of our lives financial records confidential business documents medical records and private emails Electronic devices often retain sensitive and confidential information far beyond the point of erasure notably in the form of browsing histories and records of deleted files This quality makes it impractical if not impossible for individuals to make meaningful decisions regarding what digital content to expose to the scrutiny that accompanies international travel 141 A second case from the District Court in Maryland held that the border search of any computer or electronic device should be considered non-routine and require reasonable suspicion 142 The court’s argument was that while the government has legitimate concerns about child pornography it does not justify unfettered crime-fighting searches or an unregulated assault on citizens’ private information—which is what is involved in forensic examination of a hard drive The court took a different approach than the Ninth Circuit in Cotterman in the former the court determined that the forensic search of a computer that had been imaged was as invasive of the defendant’s privacy as a strip search In Saboonchi the Maryland court took issue with the Ninth Circuit’s failure to provide guidelines for what constituted a “forensic” search The court distinguished between routine and non-routine border searches and tried to construct a test for determining when a conventional computer search becomes a forensic investigation A conventional search at the border of a computer or device may include a Customs officer booting it up and operating it to review its contents and seemingly also would allow but is not necessarily limited to reviewing a computer's directory tree or using its search functions to seek out and view the contents of specific files or file types And just as a luggage lock does not render the contents of a suitcase immune from search a password protected file is not unsearchable on that basis alone 143 In contrast “ i n a forensic search of electronic storage a bitstream copy is created and then is searched by an expert using highly specialized analytical software—often over the course of several days weeks or months—to locate specific files or file types recover hidden deleted or encrypted data and analyze the structure of files and of a drive ” 144 The court provided three explanations for why forensic searches should be considered sui 140 United States v Cotterman 709 F 3d 952 9th Cir 2013 en banc requiring reasonable suspicion for forensic examination of the laptop 141 709 F 3d at 964-65 142 U S v Saboonchi 990 F Supp 2d 536 D Md 2014 143 Id at 560-61 144 Id at 561 20 generis first it creates a copy and uses specialized software to analyze the computer’s contents second it provides access to deleted material third it provides insight into an individual’s actions away from the border which would not otherwise be discoverable 145 The First Circuit in evaluating other kinds of searches offered the following nonexhaustive list of factors may be relevant when determining whether a search can be characterized as routine i whether the search results in the exposure of intimate body parts or requires the suspect to disrobe ii whether physical contact between Customs officials and the suspect occurs during the search iii whether force is used to effect the search iv whether the type of search exposes the suspect to pain or danger v the overall manner in which the search is conducted and vi whether the suspect's reasonable expectations of privacy if any are abrogated by the search 146 D Riley v California Stronger Constitutional Protections for Mobile Devices The above cases pre-dated Riley v California 147 in which the Supreme Court “made it clear that the breadth and volume of data stored on computers and other smart devices make today's technology different in ways that have serious implications for the Fourth Amendment analysis ” 148 One of the first border search cases to incorporate and apply Riley was United States v Kim in which the court determined that the question of electronic searches was settled neither by the border exception nor by application of what was meant by “forensic ” Instead it considered the extent to which the search “intrudes upon an individual's privacy and on the other the degree to which it is needed for the promotion of legitimate governmental interests ” 149 The court noted while the courts in Ickes Cotterman and Saboonchi had little in the way of Supreme Court precedent to guide their way the Supreme Court has since issued its opinion in Riley v California And in Riley the Court made it clear that the breadth and volume of data stored on computers and other smart devices make today’s technology different in ways that have serious implications for the Fourth Amendment analysis 150 Riley dealt with the search of a mobile phone incident to arrest In that case the Court underscored the distinction between electronic devices and physical items “Modern cell phones as a category implicate privacy concerns far beyond those implicate by the search of a cigarette pack a wallet or a purse ” 151 Even the term was misleading as “many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone ” 152 A key distinguishing feature is the “immense storage capacity” of such devices “Most people cannot lug around every piece of mail they have received for the past several months every picture they have taken or every book or 145 Id at 563 See also Gretchen C F Shappert The Border Search Doctrine Warrantless Searches of Electronic Devices After Riley v California U S ATTY’S BULL Nov 2014 at 10 146 United States v Braks 842 F 2d 509 512 1st Cir 1988 footnotes omitted 147 Riley v California 134 S Ct 2473 2014 148 United States v Kim 103 F Supp 3d 32 54 D D C 2015 149 Riley 134 S Ct at 2484 quoting Wyoming v Houghton 526 U S 295 300 1999 150 Kim 103 F Supp 3d at 54 151 Riley 134 S Ct at 2488-89 152 Id at 2489 21 article they have read ” 153 Mobile phones can store “millions of pages of text thousands of pictures or hundreds of videos ” 154 The sheer capacity of mobile devices has numerous implications for privacy First a cell phone collects in one place many distinct types of information—an address a note a prescription a bank statement a video—that reveal much more in combination than any isolated record Second a cell phone's capacity allows even just one type of information to convey far more than previously possible The sum of an individual's private life can be reconstructed through a thousand photographs labeled with dates locations and descriptions the same cannot be said of a photograph or two of loved ones tucked into a wallet Third the data on a phone can date back to the purchase of the phone or even earlier A person might carry in his pocket a slip of paper reminding him to call Mr Jones he would not carry a record of all his communications with Mr Jones for the past several months as would routinely be kept on a phone 155 More than 90% of American adults own and carry cell phones keeping “on their person a digital record of nearly every aspect of their lives—from the mundane to the intimate ” 156 The type of information that could be gleaned moreover different in important respects from what could be uncovered from the search of a physical item Medical records location information relationship details political beliefs religious convictions—all of this more than could be ascertained even from a search of an individual’s home can be gleaned 157 Beyond this mobile phones provide a gateway to the cloud The court in Riley was utterly unsatisfied with the solution the government proposed here namely “to disconnect a phone from the network before searching the device ”158 This is precisely what CBP is doing in regard to search of electronic devices at the border In Kim as aforementioned the court applied Riley and determined under a totality of circumstances test that the imaging and search of a laptop for an unlimited period and without any limits on the scope of the analysis invaded the traveler’s privacy to such an extent that it was unreasonable under the Fourth Amendment 159 The court noted “given the vast storage capacity of even the most basic laptops and the capacity of computers to retain metadata and even deleted material one cannot treat an electronic storage device like a handbag simply because you can put things in it and then carry it onto a plane ” 160 The Kim case is notable not just for its application of Riley but because it involved a conscious decision by investigators to wait until a suspect left the United States before using the border exception to search his laptop and thereby obtain detailed information about his activities 161 The court ultimately rejected agents’ instrumentalist approach— i e using the border search exception to obtain information to which they otherwise would not be entitled 162 153 Id Id 155 Id at 2489 156 Id at 2490 157 Id at 2490-91 158 Id at 2491 159 Kim 103 F Supp 3d at 56 160 Id at 50 emphasis added 161 Id at 38-39 162 Id at 45 citing Hassanshahi 75 F Supp 3d at 120-21 154 22 E Impact of Carpenter v United States As with Riley the Court’s recent decision in Carpenter v United States has significant implications for how to think about potential Fourth Amendment limits on electronic border searches In Carpenter the Court decided not to extend third party doctrine from United States v Miller and Smith v Maryland to cell site location information CSLI 163 In United States v Jones five justices the so-called “shadow majority” had adopted the view that individuals have a reasonable expectation of privacy in the whole of their physical movements 164 The Carpenter court built on Jones underscoring the sensitivity of the information that could be gleaned from location data It highlighted a number of factors that suggested a higher privacy incursion accuracy retroactive application length of time implicating the amount of information the revealing nature of the information the nature of the information obtained and the ease with which it could be obtained 165 These elements are all present in the border search of electronic devices suggesting a higher intrusion into travelers’ privacy than is present with the simple search of a traveler’s baggage or pockets To the extent that electronic devices contain a record of the traveler’s physical movements warrantless search runs directly contrary to the holding in Carpenter F The Problem of Digitization The two streams of authorities customs and immigration both deal with the transportation of physical objects articles and people Before concluding it is worth noting that digitization presents two particular challenges for these regimes First for customs what happens when the illicit materials being sought are digital and not physical In the past if an object was carried into the country then the inspection regime would uncover it at the border But what happens if the illicit material can merely be uploaded onto the cloud to be accessed once someone enters the United States If a traveler in Thailand for instance uploads child pornography onto the cloud should there be a way to use the traveler’s movement to uncover the material Or what if the material in question consists of documents such as plans for a nuclear reactor or technology designs which have been forbidden by the export regime Should a traveler be able to upload this material to the cloud only to pull it down elsewhere In the past the material would have either have been mailed through the post or carried by hand Should there be a way to foreclose a digital end-run around the customs regime There are at least three possible responses to this argument Foremost it is important to note that part of the reason this issue even presents is because of the post-War expansion of the customs mail search regime to include not just uncustomed items but also child pornography weapons of mass destruction emergency matters under the IEEPA and the like The historical purpose of the customs regime was not to uncover illegal activity generally The purpose of customs searches was to identify the illegal transportation of contraband or undeclared items 166 To the extent that a border search exception derived from sovereignty applies it is specifically with this end in mind In addition in light of the expansion of the Foreign Intelligence Surveillance Act FISA post-9 11 and the infamous demise of the wall such matters may be relegated more appropriately to the surveillance realm That is to the extent that matters such as drawings of a nuclear reactor being provided to third countries implicate foreign affairs 163 United States v Miller 425 U S 435 1976 Smith v Maryland 442 U S 735 1979 United States v Jones 565 U S 400 2012 165 Carpenter v United States No 16-402 slip op at 12-22 June 22 2018 166 U S v Seljan 547 F 3d 993 9th Cir 2008 164 23 surveillance would appropriately fall within FISA Even where the investigation may be primarily criminal in nature such surveillance still comes within FISA’s ambit Further to the extent that electronic searches reveal information that would otherwise be held in the home then allowing such searches forces the historic protections afforded to the home even in customs matters to drop away Email has replaced letter correspondence electronic calendars now take the place of planners and the contacts list now serves as a telephone book The border exception applied to electronic devices threatens to swallow the protections which for centuries have limited customs searches This is true not just for the type of data at stake but actual views of the home Consider for instance the Blink Home Monitor An application can be downloaded to smartphones and tablets providing homeowners with real-time coverage of what is happening inside their houses 167 The second challenge presents for immigration Here part of the reason behind subjecting non-citizens to searches prior to entering the United States has to do with ascertaining a whether they are who they say they are and b what sorts of individuals are being admitted to the country Surely the type of information present in travelers’ electronic devices is relevant to such a determination By not taking into account social media or the full range of an individual’s background moreover U S security may be harmed Notwithstanding PPD-28 and its extension to non-citizens of privacy rights as Chief Justice Rehnquist noted in Verdugo-Urquidez non-U S persons without a substantial connection to the United States lack Fourth Amendment protections V CONCLUDING REMARKS Like the search incident to arrest exception at issue in Riley the border search exception is still subject to the reasonableness requirement of the Fourth Amendment Numerous cases are beginning to move through the courts challenging whether electronic devices fall outside constitutional norms 168 The American Bar Association has raised particular concerns about the extent to which the reading duplication and seizure of legal documents violates client-attorney privilege 169 Similar issues have been raised in regard 167 See https blinkforhome com pages blink-home-monitor-app locale en gclid EAIaIQobChMIpZlhMeS3AIVC4GzCh2AQQZnEAAYASAAEgJCM_D_BwE gclsrc aw ds 168 See e g Abidor v Napolitano 990 F Supp 2d 260 E D N Y 2013 dual U S French citizen had laptop searched confiscated at Canadian border and returned eleven days later with evidence that his personal files including his research photos chats with his girlfriend had been searched Complaint Alasaad v Duke 1 17-cv-11730-DJC D Mass filed Sept 13 2017 challenging search and seizure of smartphones laptop and other electronic devices at the U S border in violation of the First and Fourth Amendments See also Daniel Victor Forced Searches of Phones and Laptops at U S Border are Illegal Lawsuit Claims N Y TIMES Sept 13 2017 https www nytimes com 2017 09 13 technology aclu-border-patrol-lawsuit html Deb Riechmann Are Searches of Laptops and Cellphones by Border Agents Unconstitutional PBS Sept 13 2017 http www pbs org newshour rundown searches-laptops-cellphones-border-agentsunconstitutional 169 See e g Looper v Morgan Civ No H-92-0294 1995 U S Dist LEXIS 10241 S D Tex June 23 1995 U S v United Shoe Machinery Corp 89 F Supp 357 D Mass 1950 Upjohn Co v United States 449 U S 383 1981 This creates a possible conflict between Rule 1 6 of the ABA Model Rules of Professional Conduct which deals with Confidentiality of Information and searches at the border Under work product doctrine such materials are not discoverable Fed R Civ P 26 b 3 A although it can be overcome by the demonstration of “substantial need” Fed R Civ P 26 b 3 A ii There is a distinction to be drawn between attorney-client material generally versus information and material related to litigation the confidentiality requirement and common interest doctrine See e g Bank of Am v Terra Nova Ins Co Ltd 211 F Supp 2d 493 S D N Y 2002 The ABA Criminal Justice Section currently has a Task Force looking into electronic border searches considering inter alia the impact on client-attorney privilege 24 to doctor-patient records and journalists’ privileges spousal communications information covered by a U S federal court protective order proprietary information and intellectual property As a matter of constitutional law at least in terms of the Fourth Amendment issues the Court’s recent decisions in Riley and Carpenter and the concerns raised by the shadow majority in Jones suggest that electronic devices warrant a higher level of protection As a matter of First Amendment doctrine the Court in United States v Ickes found such arguments to be unpersuasive 170 In that case Ickes argued that border search doctrine does not apply when the material being searched is expressive “ T his cannot be the case ” the court wrote That doctrine “is justified by the ‘longstanding right of the sovereign to protect itself ’” 171 National security interests in the contemporary age inescapably implicate expressive material such as terrorist communications Recognizing First Amendment interests moreover would create difficulties in determining where the line should be drawn 172 Notwithstanding the court’s decision in Ickes the implications of access to electronic devices for religious freedom free speech and free association are substantial The type of information contained in mobile phones tablet and computers goes to the most intimate aspects of individuals’ politics beliefs and relationships One of the more recent cases to raise these issues settled 173 In addition to the important Fourth and First Amendment issues at stake are those related to the Fifth Amendment right against self-incrimination as well as due process and the Sixth Amendment right to counsel As recognized in the introduction to these written remarks border searches of electronic devices are increasing at an alarming rate Thus far CBP and ICE have been largely left to determine for themselves whether and to what extent they can search travelers’ devices While border searches are supported by claims of sovereignty technological advances increasingly implicate individual rights In Riley the Government offered as an alternative that it be allowed to develop its own protocols to address the unique questions posed by cloud technologies The Court observed “the Founders did not fight a revolution to gain the right to government agency protocols ” 174 The Founders fought for rights—rights that are now endangered by the government’s search of electronic devices as citizens depart and re-enter the United States The time is ripe for Congress to take action 170 United States v Ickes 393 F 3d 501 506-08 4th Cir 2005 Id at 506 internal citations omitted 172 Id 173 House v Napolitano No 11-cv-10852-DJC 2012 WL 1038816 D Mass Mar 28 2012 David House part of the Bradley Manning Support Network had his laptop seized at the border and imaged 174 Id 171 25