Fourth Circuit Rules Border Agents Can Manually Search Phones Without Suspicion

• The Fourth Circuit Court of Appeals ruled that U.S. border agents may perform manual searches of electronic devices without a warrant or individualized suspicion.
• This decision creates a legal distinction between "manual" searches and "forensic" searches, subjecting the former to lower privacy standards.
• EFF and other civil liberties groups contend that all digital device searches should require a warrant due to the sensitive nature of the data involved.

Background on Border Searches

• The "border search exception" historically allows for warrantless, suspicionless searches of luggage and personal effects at the border.
• Courts previously established higher standards for invasive searches, such as those involving forensic software that extracts entire device contents.
• In U.S. v. Riley (2014), the Supreme Court noted that cell phones contain a unique, comprehensive archive of an individual's private life, necessitating different privacy protections than physical luggage.

The Fourth Circuit Decision

• The ruling in U.S. v. Belmonte Cardozo involved a two-minute manual search of a phone that uncovered illegal content.
• The court categorized manual searches as "routine," justifying them by noting:
  • Humans, rather than machines, conduct the search.
  • Scope is limited by an officer’s time and capacity.
  • Data access is restricted to what is visible to the user.
  • No permanent forensic copy is created.
• The decision departs from prior precedents like U.S. v. Kolsuz (2018) and U.S. v. Aigbekaen (2019), which required suspicion or warrants for forensic digital extractions.

Critical Implications

• The EFF argues that the technical method of searching is irrelevant to the level of privacy invasion, as even brief manual scrolling can expose deeply personal information.
• Modern native search features on smartphones allow agents to uncover specific sensitive information in seconds, rendering the "time-limited" justification for manual searches increasingly obsolete.
• A limited "silver lining" remains: the court’s focus on the two-minute duration leaves a potential opening to challenge longer, more intrusive manual searches in the future.