Keep an eye on a recent case filed by the Pacific Legal Foundation (PLF). It may broaden recognition of something the Supreme Court has found: Cell phones are no ordinary possession. When you are carrying a cell phone around, you are carrying private and personal information comparable to what is contained in your house. When government agents want to search a cell phone, the Supreme Court has said, “Get a warrant.”

The case is Chavarria v. US Department of Homeland Security. Vermont school superintendent and naturalized citizen Willmer Chavarria regularly visits his family in Nicaragua. On a recent return, says the complaint, he was held by border agents, cajoled, and badgered until he allowed them access to his devices and their content. The complaint says government agents told him he has no Fourth Amendment rights at the border.

The “border search exception” has rankled me for years as a product of legal “drift” among attorneys (motivated or careless) and judges who have failed to recognize the rationales of precedential cases.

Yes, of course, the Fourth Amendment provides lower protections at national borders. It is reasonable at borders for government agents to assure themselves that a traveler is admissible to (or back into) the United States. At borders, it is reasonable to search for things subject to tariffs and things US polices exclude from our nation’s shores—dutiable items and contraband.

Over years, these rationales for seizing and searching at borders have transmogrified into an “exception,” as though the Fourth Amendment doesn’t apply. It does.

There are conceptual limits to “the right of the people to be secure in their persons, houses, papers, and effects.” One is who constitutes “the people.” It would tend to exclude foreign nationals outside the United States (and at borders). But I don’t think the Fourth Amendment is territorial: American citizens remain “the people” when traveling overseas. There certainly isn’t language in the Fourth Amendment that allows for a border exception applicable to citizens. There is only what is reasonable, and reasonableness is required everywhere a person protected by the Constitution goes.

PLF’s complaint (at paragraph 50) does a good job of dispensing with searches of digital materials at borders:

No rationale for a judicially recognized exception to the Fourth Amendment’s warrant requirement is applicable, as would be necessary to render reasonable the warrantless, suspicionless searches and seizures of electronic devices at the border authorized by CBP’s [Customs and Border Patrol’s] and ICE’s [Immigration and Customs Enforcement’s] Directives. In particular, unlike the physical property to which the traditional border exception extends, electronic devices cannot store “goods” and “articles,” the tangible physical objects which are subject to tariffs. Nor can they conceal someone attempting to enter the U.S. unlawfully. And while digital contraband does exist, such contraband can also be emailed or stored in the cloud for remote access from anywhere in the world, making searches for such contraband a general criminal law interest, not a border concern.

Digital content is almost never subject to tariffs, and it’s almost never contraband. When it is, the internet makes it trivially easy to import directly without carrying it on a device. Searching devices for digital content in which the government has a border-relevant interest is essentially incoherent, not reasonable. Thus, travelers at national borders who are not suspects should be able to enter without suffering searches of their devices.

Why? It’s because of the privacy risks and costs on the other side of the ledger. The relevant Supreme Court case is Riley v. California.

In that case, David Leon Riley was properly seized and arrested, having illegal weapons concealed in his car. Gangbanger! Thug! Non–school superintendent! (No offense, Mr. Riley, should we ever meet in person.) Consistent with appropriate policy for arrestees, his phone was taken from him. But could officers thumb through it looking for more evidence just because they had it? Said the Court:

Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life.” The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant. (Citations omitted.)

Wise words, which should probably prevail when non-suspect US citizens present themselves for reentry at our borders.