The Electronic Frontier Foundation (EFF), alongside the national American Civil Liberties Union (ACLU) and its affiliates in Pennsylvania, Delaware, and New Jersey, has filed a comprehensive amicus brief in the U.S. Court of Appeals for the Third Circuit, intensifying a decade-long legal battle to establish warrant requirements for electronic device searches at international borders. The filing in the case of United States v. Roggio represents a pivotal moment in the ongoing effort to reconcile centuries-old border search doctrines with the vast privacy implications of modern digital technology. For nearly ten years, civil liberties advocates have argued in both the halls of Congress and federal courtrooms that the "border search exception" to the Fourth Amendment should not grant the government unfettered access to the gigabytes of personal data stored on smartphones, laptops, and tablets.
The case currently before the Third Circuit centers on Ross Roggio, an individual who was under an active criminal investigation regarding illegal exports when he returned to the United States via John F. Kennedy International Airport (JFK) in February 2017. Internal government records revealed that investigative agents had met in early January 2017 to coordinate their efforts, specifically discussing the use of border search authority to bypass the traditional requirement of obtaining a warrant based on probable cause. Upon Roggio’s arrival, Customs and Border Protection (CBP) officers seized his laptop, tablet, cellular phone, and a flash drive, performing forensic searches that yielded emails and other data later used to secure his conviction. Roggio was eventually sentenced to 70 years in prison for various crimes, including the illegal export of firearm parts to Iraq and the torture of an employee at a furniture factory in the Kurdistan region of Iraq.
The Evolution of the Border Search Exception
To understand the significance of the EFF and ACLU’s intervention, one must examine the historical context of the border search exception. For over a century, the U.S. Supreme Court has recognized that the government’s interest in protecting the nation’s sovereignty allows for certain warrantless searches at the border. Traditionally, these "routine" searches applied to physical luggage, vehicles, and cargo. The primary justification was the interdiction of physical contraband—such as narcotics, weapons, or undeclared commercial goods—and the collection of customs duties.
However, the legal landscape shifted significantly with the 2014 Supreme Court decision in Riley v. California. In that landmark ruling, the Court held that the "search-incident-to-arrest" exception did not extend to cell phones. Chief Justice John Roberts famously noted that modern cell phones are "not just another technological convenience," but rather contain a "digital record of nearly every aspect of [a person’s] life—from the mundane to the intimate." The Court concluded that the immense storage capacity and qualitative nature of digital data required a warrant, even when a person was legally under arrest. The amicus brief filed in the Roggio case argues that the logic applied in Riley must now be applied to the border.
Escalating Frequency and Depth of Digital Intrusions
The urgency of the Third Circuit filing is underscored by recent data released by U.S. Customs and Border Protection. According to official statistics, in Fiscal Year 2025, CBP conducted 55,318 searches of electronic devices at ports of entry. These searches are categorized into two types: "basic" (manual) and "advanced" (forensic).
A manual search occurs when an officer physically navigates through a device’s interface, viewing photos, messages, and apps. An advanced or forensic search is far more invasive, involving the connection of the traveler’s device to external hardware equipped with specialized software. These tools, often provided by private forensic firms, can bypass encryption, recover deleted files, and generate a comprehensive report of the user’s entire digital history, including metadata and cloud-linked information. While recent security updates on high-end smartphones have made some devices more resistant to these tools—particularly when the device is powered off—the government continues to invest heavily in technology designed to crack these defenses.
Advocates argue that the sheer volume of data involved makes the comparison between a suitcase and a smartphone legally untenable. A typical suitcase might contain a few personal items and documents; a modern smartphone can hold the equivalent of millions of pages of text, thousands of photographs, and a complete history of a person’s movements and communications.
Legal Arguments: Contraband versus Evidence
The EFF and ACLU brief presents three primary arguments for why the Third Circuit should mandate a warrant requirement. First, the groups point out that physical contraband cannot be found within digital data. While a suitcase might hide a kilogram of cocaine, a PDF file or an email cannot physically contain drugs or weapons. Therefore, the historical justification for the border search exception—stopping the physical entry of prohibited items—does not apply to the bits and bytes of digital information.
Second, the brief addresses the issue of digital contraband, such as child sexual abuse material (CSAM). The advocates argue that a warrantless border search is an ineffective and unnecessary tool for stopping the "entry" of such files. Because of the nature of cloud computing and the global internet, digital files are often already stored on servers within the United States or are accessible from anywhere in the world. Searching a physical device at the border does not prevent the "importation" of data in the same way that seizing a physical shipment of illegal goods does.
Third, the brief highlights a concerning trend where border searches are used as a loophole for general law enforcement. In the Roggio case, the search was not conducted to find items that would harm the country upon entry; rather, it was used to gather evidence for a pre-existing criminal investigation. The EFF argues that using the border search exception as a tool for general evidence-gathering is "untethered" from the exception’s original purpose. When the government’s goal is to find evidence of a crime rather than to block the entry of prohibited goods, the Fourth Amendment’s warrant requirement must remain the standard.
Judicial Precedent and the Search for a Standard
The Third Circuit’s decision could resolve or deepen an existing split among federal appellate courts. In the 2019 case U.S. v. Cano, the Ninth Circuit Court of Appeals established a more protective standard, ruling that forensic searches of devices at the border require "reasonable suspicion" of digital contraband. Furthermore, the Cano court held that all searches—manual or forensic—must be strictly limited to looking for digital contraband, rather than a general search for evidence of other crimes.
The EFF and ACLU are urging the Third Circuit to go even further than the Ninth Circuit by requiring a full warrant based on probable cause. However, if the court is unwilling to impose a warrant requirement, the advocates argue it should at least adopt a "reasonable suspicion" standard for both manual and forensic searches. This would prevent CBP from conducting "suspicionless" searches, where travelers are targeted without any specific evidence of wrongdoing.
Broader Implications for Privacy and International Travel
The outcome of U.S. v. Roggio will have profound implications for millions of travelers. As it stands, travelers entering the United States are often forced to choose between surrendering their digital privacy or facing the seizure and potential permanent loss of their devices. For journalists, lawyers, and business professionals, these searches pose an additional risk to privileged communications and sensitive source material.
Civil liberties groups emphasize that the privacy interests at stake are not just about hiding criminal activity, but about protecting the fundamental right to keep one’s private life private. Digital devices today contain a "digital autobiography," revealing religious affiliations, medical histories, romantic relationships, and political leanings. Without judicial oversight, these devices become windows into the most intimate details of a person’s life, accessible to government agents without any prior review by a neutral magistrate.
As the Third Circuit deliberates, the case serves as a reminder of the tension between national security and constitutional protections in the digital age. Whether the court will rise to the occasion and establish a new precedent for digital privacy remains to be seen, but the decision will undoubtedly shape the future of Fourth Amendment jurisprudence for years to come. The case is expected to be a major stepping stone toward an eventual showdown in the U.S. Supreme Court, as different circuits continue to grapple with the limits of government power at the nation’s borders.
