Border Searches of Travelers’ Electronic Devices Remain an Evolving Area of U.S. Law

by Foley Hoag LLP

Last year, we provided an update on the Trump administration’s controversial ramp up of border searches and inspections of electronic devices of travelers applying for admission to the U.S. A variety of travelers have since challenged U.S. Department of Homeland Security (“DHS’), alleging fourth amendment violations. In fact, U.S. Customs and Border Protection (CBP) issued another directive earlier this year that further clarified their authority to search electronic devices. It was titled "Border Search of Electronic Devices" and it stated in part that border searches of electronic devices are limited to "only the information that is resident upon the device," and a CBP officer is prohibited from intentionally using the device to access information that is solely stored remotely or on a cloud. Our 2018 Policy update provided additional details about this directive.

United States v. Vergara

Last week, an interesting case about electronic device searches at the border caught our attention. In United States v. Vergara, the U.S. Court of Appeals for the Eleventh Circuit ruled that the search of electronic devices at the U.S. border, including forensic searches, required “neither a warrant nor probable cause” to believe a crime had been committed. The court characterized its decision as the first opinion to examine the question after the Supreme Court’s ruling in Riley v. California, which recognized elevated privacy interests implicated by the search of a cell phone.

In Vergara, a U.S. citizen was returning to the U.S. on a cruise ship from Mexico. He had been flagged for additional screening due to a prior conviction for possession of child pornography. At the border, a CBP Agent searched the contents of several phones in his possession and discovered a short video of topless female minors. DHS was alerted, and it conducted a forensic search of all his phones, which found more than 100 images and videos of minors engaged in sexual conduct. Vergara was charged with possession and transportation of child pornography.

Vergara argued that the search of his phones was unconstitutional and that the resulting incriminating evidence from the forensic search should not be admitted at trial. The trial court disagreed, and Vergara was found guilty.

On appeal, the majority of the three-judge panel ruled that searches at the border, including of electronics, “never” require a warrant or probable cause to believe a crime was committed. It explained that “highly intrusive” border searches, like strip searches, require “reasonable suspicion” of a crime (a lesser showing than “probable cause”), and that all other searches can be made without any suspicion of a crime at all. Consequently, because Vergara had not argued that there was no “reasonable suspicion” at the border, the search of his electronics was necessarily legal.

One judge, however, dissented from this ruling. Judge Jill Pryor wrote that, in her view, the law requires that a forensic search of a cell phone at the border requires a warrant supported by probable cause. Judge Pryor explained that “cell phones are fundamentally different from any other object traditionally subject to government search at the border” because they store huge amounts of highly personal data.

What's Next?

The scope of the government’s authority to search electronics at the border remains an evolving area of law. For example, the ACLU of Massachusetts, the national ACLU, and the Electronic Frontier Foundation recently filed a lawsuit in federal court in Massachusetts on behalf of 11 travelers whose personal electronics were searched at the border without a warrant, seeking a ruling that such searches cannot be made except pursuant to a warrant based upon probable cause. That suit remains pending. Until the question is finally resolved, travelers can assume that border agents will continue to assert broad powers to search personal electronics as travelers apply for admission to the US. Therefore, you should be aware and extremely careful about the information or data stored in your electronic device.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Foley Hoag LLP | Attorney Advertising

Written by:

Foley Hoag LLP

Foley Hoag LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.