The 9th Circuit says border officers must only search for digital contraband, not evidence of crimes
Shackled to a bench at the San Ysidro Port of Entry, Jeff Valenzuela was ordered by border officers to unlock his cellphone or else it would be seized.
He complied and watched helplessly as it disappeared into a back room, where he assumes officers spent the next 45 minutes downloading its contents.
The phone was returned, and the intimate details of his life — and the lives of those close to him — were now in the hands of the U.S. government.
Valenzuela, a U.S. citizen and rights-group volunteer living in Tijuana, had been detained as part of a federal operation against a migrant caravan camped at the border. He was one of the nearly 41,000 international travelers whose electronic devices were searched at U.S. ports of entry in fiscal year 2019.
The 9th U.S. Circuit Court of Appeals, in an opinion stemming from a San Diego case, has significantly narrowed the ability of border officers to conduct warrantless searches of cellphones carried by international travelers, whether it be at land, air or sea ports of entry.
The ruling prohibits the kind of fishing expeditions for intelligence or evidence of a crime — past or future, border-related or not — that prompted the kinds of warrantless searches in border zones that Valenzuela experienced in December 2018.
Instead, border officers now must limit their search for one thing: digital contraband — defined largely by the courts as child pornography, according to the ruling.
The court ruling was issued in 2019, but it was only recently confirmed as law.
“It really is tightening the screw to increase your protection from searches,” said Ryan Stitt, an attorney with Federal Defenders of San Diego who was involved in the case.
The ruling has a potentially big implications in San Diego, home to the busiest land border crossing in the Western hemisphere — a portal not only to millions of legitimate travelers like Valenzuela but also part of a well-worn route for drug and human smugglers.
Privacy advocates have hailed the case as a win for civil liberties, while the U.S. government — and some federal judges — say the decision makes the country less safe, letting potential evidence of drug smuggling to visa fraud to terrorist activity slip past border gatekeepers.
The ruling also adds to a confusing matrix of clashing court opinions on the issue across the country. In practice, it could mean you are subjected to one set of rules returning from an international flight in San Diego and another in Boston.
Cocaine in a tire
The case stems from the 2016 arrest of Miguel Cano, who was caught at the San Ysidro Port of Entry with 31 pounds of cocaine hidden in a spare tire. Cano, a lawful permanent U.S. resident living in Tijuana, told investigators that he had crossed into San Diego to try to find work as a carpet installer. He denied knowing there were drugs in his vehicle.
Two agents from Homeland Security Investigations took his cellphone. First one of the agents conducted a brief manual search, noticing the call log and lack of text messages.
The agent later explained the search was “to find some brief investigative leads in the current case” and “to see if there’s evidence of other things coming across the border,” according to the court record.
Then the other agent looked in the phone, writing down some of the numbers in the call log on a piece of paper and taking a photo of two text messages that had just come in.
The agent then conducted a forensic search, hooking up the device to Cellbrite software, which allows the agent to access and download data including text messages, contacts, call logs, videos and photos.
A three-judge panel of the 9th Circuit deemed the searches a violation of Cano’s Fourth Amendment right against unreasonable search and seizure.
Digital contraband only
The Fourth Amendment largely requires a warrant to search someone’s possessions — including cellphones, according to a 2014 landmark Supreme Court ruling. But certain exceptions have historically existed at the border, where privacy concerns and public policy interests have long collided.
Courts recognized that the United States has a long-standing right to protect itself by examining and controlling who and what comes into the country, and that people give up some expectation of privacy when passing through.
“The whole idea is this strong public policy interest against contraband being smuggled in. It gives border officials greater authority to do warrantless searches,” said Stitt, Cano’s attorney at trial. “The question becomes how does that apply in the 21st century to digital contraband?”
According to the 9th Circuit, the answer is: narrowly.
The court held that “detection of … contraband is the strongest historic rationale for the border-search exception” and that the exception does not stretch to include “search for evidence of contraband that is not present at the border” or for “evidence of past or future border-related” criminal activity.
The opinion — penned by Circuit Judge Jay Bybee, a Bush nominee — concluded that “cellphone searches at the border, whether manual or forensic, must be limited in scope to a search for digital contraband.” He was joined in his opinion by Circuit Judge Susan Graber, a Clinton nominee, and Judge Douglas Harpool, an Obama nominee to the Missouri district bench who sat on the 9th Circuit panel by designation.
Digital contraband has largely been defined in related court cases as child pornography, although in at least one legal filing U.S. Customs and Border Protection said it considers classified government material and malware to be in that category as well.
The court imposed even stricter limits on forensic, or advanced, searches, which involve officers hooking up the phone to extraction software. To do that, officers must have reasonable suspicion — a lesser standard of suspicion than probable cause, but still based on some fact or circumstance — that digital contraband exists on the phone. The search must still be only for that contraband.
If border officials want to investigate a crime, they need to get a search warrant.
“What Cano is really doing is making it so that they can only search for contraband on a phone, and really only child pornography,” Stitt said. “Before, in CBP’s view, they could search for anything, for any reason crossing the border, to any extent. This narrows that.”
What happens if a border officer comes across evidence of a crime while searching for contraband? That is still somewhat of an open legal question, said Nathan Wessler an attorney with the American Civil Liberties Union. But the general rule should be to stop the search immediately and obtain a warrant to continue, he said.
CBP revised its directive on electronic device searches in 2018 to more closely adhere to some of the legal rulings being handed down, including requiring reasonable suspicion in order to conduct an advanced search.
A CBP spokesperson said in a statement that the agency is continuing to review its directive and to conduct searches “in accordance with statutory and regulatory authorities and applicable judicial precedent,” including the Cano decision.
Department of Justice attorneys argue the 9th Circuit’s ruling is an outlier when compared to past and current legal decisions on border searches.
“The court’s decision confuses and disrupts the day-to-day work of border officials who, nationwide, inspect hundreds of millions of arriving travelers and examine tens of thousands of electronic devices each year,” attorneys argued in their petition to the Supreme Court.
Of the more than 410 million travelers processed through air, land and sea ports of entry nationwide in fiscal 2019, 35 percent came through the 9th Circuit’s jurisdiction, according to court filings.
CBP officials stressed that the number of device searches make up a small fraction — less than a hundredth of a percent — of the total number of crossings.
“On rare occasions, CBP officers may search a traveler’s mobile phone, computer, camera and other electronic devices during the inspection process,” a CBP spokesperson said. “These searches have helped detect terrorist activity and other national security matters, child pornography, drug smuggling, human smuggling, bulk cash smuggling, human trafficking, export control violations, intellectual property rights violations and visa fraud.”
But these searches have touched a broad spectrum of travelers — not just those caught with illicit loads.
Journalists, political activists, lawyers and people in certain religious and ethnic groups have reported being told to hand over their devices at various ports of entry across the country, for no specific reason.
In 2018, a secret joint U.S.-Mexico operation targeted human rights activists, immigration attorneys and journalists who were crossing the border frequently to interact with the large Central American migrant caravans that had arrived in Tijuana. Federal authorities have said the individuals were suspected of colluding with the migrants or had intelligence on “criminal events” — accusations many of the targets have strongly denied.
That’s why Valenzuela, a volunteer with migrant-rights group Pueblo Sin Fronteras and a photographer, was subjected to two cellphone searches upon crossing into San Diego.
The first time, he was asked to show plainclothes officers his photo reel, to check if he had child porn on his phone, they told him. They made him pause at certain photos — which depicted migrants and had nothing to do with children or pornography — and they asked him to explain the images, he said.
A few days later, he was detained, this time in handcuffs, and questioned again. When they ordered him to unlock the phone, he felt cornered and didn’t want to lose his phone, so he agreed. Then it was taken out of his sight.
“It was incredibly violating. I knew I obviously hadn’t done anything, I wasn’t in there because I’d committed some crime,” Valenzuela said. “I was more concerned about other people’s information that might have been compromised.”
The Department of Justice wanted the Supreme Court to review the case for another reason: to settle the law on an issue that has been decided differently around the country.
One lawsuit, argued in Boston by the ACLU, involved 10 U.S. citizens and one green card holder who had their phones or other electronic devices searched while returning from travel abroad. Some of them had their devices confiscated for weeks or months.
The plaintiffs included journalists, an artist, a former Air Force captain, a NASA engineer and a Muslim woman who said it was against her religious belief to have a male officer view photos on the phone of her without her headscarf.
“We know the government uses various profiles to try to identify people to subject to searches,” said Wessler, who was involved in the case. “Racial and religious profiling happens.”
In February, the 1st U.S. Circuit Court of Appeals — which includes the northeastern states of Massachusetts and Maine, as well as Puerto Rico — sided with the government in a sharply contrasting decision, saying it cannot agree with the “narrow view of the border search exception” in Cano.
The ruling concludes that border searches of electronic devices may be used to search for contraband, evidence of contraband, or for evidence of any of the violations investigated by CBP or U.S. Immigrations and Customs Enforcement.
That potentially makes for very different rules for someone traveling internationally with a cellphone in California as opposed to Maine.
In Cano, the DOJ asked the case to be reheard en banc — or by a larger, 11-member panel of the court — but the request was denied after it failed receive a majority vote of non-recused, active judges.
The government filed a writ of certiorari to the Supreme Court, but the court declined the petition on June 28.