Anibowei v. Blanche Brief: Tightening the Border Search Loophole

Originally published at CATO Institute

Editor’s note: For most Americans,  as well as migrants and foreign born individuals, their phone contains their whole life.  In fact, one could easily argue that it contains well more than one’s home, which is protected by requirements for a warrant in order to search it. It has contacts, private text messages, phone call records, emails, calendars, all kinds of apps including banking and other money moving apps – usually left signed in.   And if you are a citizen of the United States, the courts have thus far agreed: your phone is as private, or more so, than your personal computer, which also requires a warrant to seize and search.  Here, however, is a point of contention. At the border itself, before one enters the country, one’s phone can be seized and the password demanded by border patrol agents – no warrant, no reasonable suspicion or cause, no rights to privacy, no lawyer present or provided.  

George Anibowei is a Dallas immigration lawyer and a naturalized US citizen who travels abroad regularly. Since October 2016, border agents have searched his cell phone without a warrant five times. During the first search, agents copied the entire contents of the device, including privileged communications with his clients. Nearly a decade later, the government still has that data.

Mr. Anibowei sued the Department of Homeland Security, Customs and Border Protection, and Immigration and Customs Enforcement, challenging the agencies’ policies that let agents rummage through travelers’ devices with no warrant and, for so-called basic searches, no individualized suspicion at all. The district court denied him relief, and the Fifth Circuit affirmed. Mr. Anibowei now seeks Supreme Court review.

The question presented is simple: does the Fourth Amendment permit border agents to search the digital contents of a traveler’s phone without a warrant?

Cato, joined by the Freedom of the Press Foundation, filed an amicus brief asking the Court to take the case and reverse. History supports a narrow customs exception, not a general power to read private papers. An expansive exception turns routine travel into an investigative shortcut. And digital border searches invert the relationship between privacy and possession. Under CBP’s policy, a document kept solely on a traveler’s phone, under the traveler’s exclusive control, is fair game, while the same document uploaded to a cloud provider that can itself read the file is beyond reach and can be downloaded again moments after clearing customs. A constitution that expressly protects “papers” should not make personal possession the vulnerability and third-party custody the refuge.

The border-search exception exists to control what and who enters the country. It was never meant to give the government a warrantless window into the digital lives of everyone coming back home.

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