In the past couple of decades, EFF has argued that when it comes to suspicionless and warrantless searches at the border, electronic devices like cell phones are not the same as a piece of luggage. Although certain searches at the border are permitted without a warrant, the search of a digital device while crossing into or out of the United States has been dubbed by judges to be “highly intrusive” and impacts the “dignity and privacy interests” of travelers. Digital device searches therefore should not be part of the “border search” exception to the Fourth Amendment. And yet, border officers continue to routinely conduct warrantless, suspicionless searches of electronic devices.

That is exactly what happened in the case of Haitao Xiang. Mr. Xiang was under investigation by the FBI and Monsanto while he was living in St. Louis. But, instead of applying for a warrant, government officials waited until he was traveling internationally to seize his electronic devices in order to search them warrantlessly.  

EFF and the ACLU have filed an amicus brief in the case arguing against warrantless, suspicionless border searches of electronic devices like Mr. Xiang’s. As the brief states:

“Individual privacy interests are at their zenith in devices such as cell phones and laptops, even at the border. Prior to the rise of mobile computing, the “amount of private information carried by international travelers was traditionally circumscribed by the size of the traveler’s luggage or automobile.” U.S. v. Cotterman, 709 F.3d 952, 964 (9th Cir. 2013) (en banc). Today, however, the “sum of an individual’s private life” sits in the pocket or purse of any traveler carrying a cell phone, laptop, or other electronic device. Riley, 573 U.S. at 394.”

And it is exactly for this reason that border protection officers and customs officials must have a higher standard when they want to search an electronic device.

EFF will continue to fight for the belief that digital rights do not end simply because a person approaches the border.