Today, TechFreedom joined an amicus brief urging the Supreme Court to review an important case on the Fourth Amendment and border searches of digital devices.
After suffering highly invasive searches of their electronic devices as they returned to the United States, the plaintiffs sued in federal court. The Fourth Amendment, they argue, requires the authorities to obtain a warrant, or at least to have reasonable suspicion, before searching a digital device at the border. Although the trial court issued a favorable ruling, the First Circuit reversed, thereby approving warrantless and suspicionless border searches of digital devices.
As the plaintiffs explain in their petition for certiorari, the federal courts of appeals are divided—in multiple ways—about how the Fourth Amendment applies to digital-device border searches. Along with its fellow amici, TechFreedom chimes in to discuss the importance of affording greater Fourth Amendment protection to smartphones and other digital devices.
“Like turtles and their shells, people now carry a crucial part of themselves, in their advanced digital devices, as they travel,” said Corbin K. Barthold, TechFreedom’s Director of Appellate Litigation. “In an analog era, a person could be very deliberate about what information she took with her as she traveled. Now, however, many traditional stores of information (such as calendars and addressbooks), as well as many novel forms of it (such as location history), are stored in one place—a smartphone or other digital device.”
“The Fourth Amendment is not meant to age into obsolescence,” Barthold continued. “It is supposed to keep up with the advance of technology. Yet a broad ‘border search exception’ to the Fourth Amendment, one that allows warrantless or suspicionless searches of digital devices, effectively nullifies the Fourth Amendment for anyone entering the country.”
“Most smartphone searches can hardly even be called ‘border’ searches at this point,” Barthold concluded. “Searching a data-laden smartphone is akin to searching all the file cabinets in your house. It is high time the Supreme Court narrowed the border-search exception to account for this fact. We are proud to join a brief that urges the Court to take this case and do so.”
The brief was written by Covington & Burling LLP on behalf of TechFreedom, the Center for Democracy & Technology, and the Brennan Center for Justice.
Read our related work, including:
- Our statement on U.S. v. Jones: “Jones a Victory for Privacy but Only Beginning of Fixing Fourth Amendment Doctrine”
- Our article: “Huge Privacy Win: Warrants Now Required for Searching Arrestees’ Mobile Phones”
- Our statement on Carpenter v. US: “‘Get A Warrant!’ Says SCOTUS in Cell Phone Location Case”
- Our podcast #207: “Carving out Privacy Rights: Carpenter v. US”
- Our coalition letter expressing concerns about DHS policy on searching social media accounts at the border: “Social Media Disclosure Proposal Presents Major Privacy Risk”
- Our amicus brief in Facebook v. New York County District Attorney’s Office
- Our podcast #195: “Textalyzer”
- Our podcast #104: “Legal Hacking”