Warrant Needed for Border Device Searches

Border searches of your phone may soon require a warrant. That is the thrust of a new amicus brief from the Electronic Frontier Foundation and the American Civil Liberties Union ecosystem, filed in the Third Circuit as part of U.S. v. Roggio. Roggio, who had been under a criminal-export investigation, returned to the United States through JFK Airport, only for border officers to seize his laptop, tablet, cell phone, and flash drive and conduct forensic searches without a warrant. The district court had allowed those searches, citing border-search authority and a pre-travel coordination meeting in January 2017, but the briefs argue the Fourth Amendment protections should extend to digital data stored on devices, even at the border.

The amicus briefing is part of a broader, almost decade-long push to align border-search practice with evolving digital privacy expectations. The EFF and its partners argue that the data inside electronic devices—emails, chats, photos, location history, and business records—merely being “on file” in a device doesn’t justify bypassing warrant protections simply because a traveler crosses a line between jurisdictions. The Third Circuit’s engagement matters because it could set rules that ripple beyond Roggio and across circuits, given how frequently border searches occur and how much data modern devices hold.

Numbers underscore the scale. The brief notes that border agency activity around digital devices has grown alongside the ubiquity of smartphones and laptops. In Fiscal Year 2025, U.S. Customs and Border Protection conducted 55,318 device searches, according to the filing’s context about the rising trend in digital-material seizures at port of entry checkpoints. Advocates contend that such searches, if conducted without a warrant, risk sweeping up vast, highly personal information and chilling speech and travel for individuals who fear that a routine crossing could result in data exposure or evidence used in unrelated prosecutions.

From a policy angle, the Third Circuit faces a straightforward calculus: balance the government’s interest in national security and customs enforcement with individuals’ privacy rights enshrined in the Fourth Amendment. The amicus brief argues the balance tilts toward requiring warrants for searches of electronic devices at the border, asserting that digital data deserves the same warrant-based protection that governs physical property at entry points. If the court adopts that view, the geographic border becomes less of a jurisdictional loophole for pervasive data searches and more a zone where fundamental privacy rules apply to modern information.

Industry observers and defense counsel will be watching closely for how the court frames thresholds like what counts as a “search” of digital data in transit and whether exigent circumstances might ever qualify as exceptions at the border. A ruling in favor of warrants would force Customs and Border Protection to redesign intake protocols, obtain warrants in certain cases, and possibly deploy more on-site digital-forensics procedures that can operate with legal checks and time constraints. Opponents warn that waiting for warrants could slow screening and complicate timely safety checks in cases that demand rapid action, though the briefs emphasize that warrants can be crafted swiftly under modern processes.

For travelers, the potential outcome matters beyond court walls. If the Third Circuit sides with the amici, ordinary users could gain stronger assurances that personal communications and sensitive data won’t be rummaged through at point of entry without judicial oversight. For developers and digital-privacy advocates, the ruling could crystallize a clearer boundary between open investigatory power and the right to keep private information out of the hands of border officials.

The Roggio case remains before the court, with no ruling yet announced. What the Third Circuit decides could shape border-search practice nationwide, signaling how far privacy protections can—and should—reach in an era when a pocket-sized device holds a person’s life inside.

Sources

EFF to Third Circuit: Electronic Device Searches at the Border Require a Warrant