Back in 2014, the Supreme Court ruled in Riley v California, holding that border guards do not have unlimited authority to search our personal electronic devices when we cross the border, requiring individualized criminal suspicion before a search can take place.
Now, in U.S. v. Kolsuz, the first appellate ruling since Riley, the Fourth Circuit appeals court has held that it is unconstitutional for US border officials to subject visitors devices to forensic searches without individualized suspicion of criminal wrongdoing.
The Fourth Circuit didn't rule out the possibility that manual searches were also unconstitutional, but did not rule on the matter, and the ruling also suggests that warrants may be needed before border guards can undertake forensic searches of electronic devices.
Another case, Alasaad v. Nielsen, brought by EFF and the ACLU in Massachusetts, seeks to establish that warrants are required for all border device searches. The Electronic Frontier Foundation submitted an amicus brief in Kolsuz asking the court to require warrants for all border device searches.
The Fourth Circuit’s ruling applies only to forensic, not manual, searches of electronic devices at the border because Kolsuz only challenged the use of the evidence obtained from the forensic search of his cell phone is his prosecution. “We have no occasion here to consider whether Riley calls into question the permissibility of suspicionless manual searches of digital devices at the border,” the court said.
While we're heartened that the Fourth Circuit left open the possibility that manual searches may also require individualized suspicion, we disagree with the court’s unsupported statement that “the distinction between manual and forensic searches is a perfectly manageable one,” given that manual searches of electronic devices enable government agents to access virtually the same personal information as forensic searches.