The Fourth Amendment at the Border: A Question of Digital Due Process

The US government’s practice of searching electronic devices at border crossings has been a contentious issue, with many arguing that it disregards individual privacy rights. At the heart of this debate is whether warrantless searches of digital devices are constitutional under the Fourth Amendment.

As the US Court of Appeals for the Fourth Circuit considers U.S. v. Belmonte Cardozo, EFF and its coalition of amici have urged the court to adopt a clear standard: that electronic device searches at the border require a warrant supported by probable cause. The stakes are high, as the government’s ability to search digital devices without a warrant has become routine.

In Fiscal Year 2025, US Customs and Border Protection conducted an astonishing 55,318 device searches. While these searches may be justified in some instances, their sheer number suggests that the government is engaged in a wholesale invasion of travelers’ privacy. The problem with warrantless device searches is not just that they are invasive; it’s also that they lack meaningful safeguards against abuse.

Border officers can access vast amounts of personal data on electronic devices, including sensitive information about a person’s political affiliations, religious beliefs, financial status, health conditions, and family associations. This raises questions about digital due process. The government argues that warrantless device searches are justified by the border search exception to the Fourth Amendment, but this argument has been undercut by the US Supreme Court’s ruling in Riley v. California (2014).

In Riley, the Court held that police need a warrant to search an arrestee’s phone, balancing the government’s interests against individual privacy rights. The same logic should apply at the border. Moreover, the distinction between manual and forensic searches is becoming increasingly irrelevant.

Both types of searches involve a significant invasion of privacy, and both require some measure of individualized suspicion or probable cause to justify them. The Fourth Circuit has already recognized this in prior cases, such as U.S. v. Aigbekaen (2019), which held that a forensic device search at the border requires a warrant.

The EFF’s amicus brief argues that obtaining a warrant is not unduly burdensome and would streamline the process by allowing border officers to retain devices and obtain warrants when necessary. The exigent circumstances exception could still apply on a case-by-case basis. This approach would protect individual privacy rights while maintaining national security concerns.

The implications of this case go beyond the Fourth Amendment; they also raise important questions about digital rights and government regulation of online activity. As we move further into an era of increasingly invasive surveillance, it’s essential that we establish clear safeguards against abuse and protect individual privacy rights.

What’s at stake is not just a specific court decision but a broader shift in the balance between national security concerns and individual liberties. The Fourth Circuit has an opportunity to set a crucial precedent by requiring warrants for electronic device searches at the border.