11th Circuit Says No Reasonable Suspicion Needed For Invasive Device Searches At The Border
from the welcome-back-to-the-US,-please-hand-over-your-everything dept
A recent Fourth Circuit Appeals Court decision found government agents at US borders need something more than the nothing currently required to perform searches of electronic devices. Cursory searches without suspicion are still fine in the Constitution-free zone, but forensic searches of cellphones need, at minimum, reasonable suspicion.
This decision aligned the Fourth with the Ninth Circuit, where it was also determined forensic device searches require some sort of suspicion, even if performed at the border. A case out of Massachusetts (First Circuit) challenging a suspicionless device search has been allowed to move forward, possibly bringing another circuit into the mix and deepening the split.
The Eleventh Circuit Appeals Court, however, has sided with the government and against citizens' privacy. It has upheld the lower court's determination that border device searches require no reasonable suspicion, no matter what the Supreme Court said in its Riley decision, which created a warrant requirement for phone searches. (via Jake Laperruque, Brad Heath)
Karl Touset had his devices searched at the Atlanta airport after returning from an overseas trip. This followed some investigatory work by the government which suggested Touset might be involved in child pornography. The detainment and search was also prompted by money transfer service Xoom, which reported several people for making "frequent low money transfers" to people in "source countries" for child porn.
Touset was met by CBP agents on arrival. Manual searches of his two phones revealed nothing, but CBP seized Touset's laptops and external hard drives. Those were forensically searched and child porn was discovered. These warrantless searches were challenged by Touset, but the Eleventh Circuit [PDF] immediately shuts down this line of reasoning by citing the Supreme Court.
The Supreme Court has never required reasonable suspicion for a search of property at the border, however non-routine and intrusive, and neither have we.
Arguing that devices that hold thousands of pieces of personal info doesn't help.
Nor has it “been willing to distinguish . . . between different types of property.”
Neither does pointing out the invasiveness of a forensic search, which can recover long-deleted files or other electronic detritus.
And it rejected a judicial attempt to distinguish between “routine” and “nonroutine” searches and to craft “[c]omplex balancing tests to determine what [constitutes] a ‘routine’ search of a vehicle, as opposed to a more ‘intrusive’ search of a person.” We have been similarly unwilling to distinguish between different kinds of property.
Going from there, the Appeals Court says the Fourth Amendment doesn't apply at the border -- no matter what the Supreme Court justices may have said about the ubiquity of devices capable of storing people's "entire lives."
We see no reason why the Fourth Amendment would require suspicion for a forensic search of an electronic device when it imposes no such requirement for a search of other personal property. Just as the United States is entitled to search a fuel tank for drugs, see Flores-Montano, 541 U.S. at 155, it is entitled to search a flash drive for child pornography. And it does not make sense to say that electronic devices should receive special treatment because so many people now own them or because they can store vast quantities of records or effects.
The Appeals Court acknowledges its split with the Fourth and Ninth Circuits before moving on to point to its own precedent as being the correct conclusion.
We are unpersuaded. Although the Supreme Court stressed in Riley that the search of a cell phone risks a significant intrusion on privacy, our decision in Vergara made clear that Riley, which involved the search-incident-to-arrest exception, does not apply to searches at the border. 884 F.3d at 1312 (“[T]he Supreme Court expressly limited its holding to the search-incident-to-arrest exception.”). And our precedent considers only the “personal indignity” of a search, not its extensiveness. Vega-Barvo, 729 F.2d at 1346. Again, we fail to see how the personal nature of data stored on electronic devices could trigger this kind of indignity when our precedent establishes that a suspicionless search of a home at the border does not.
And it appears the Eleventh Circuit has reached this conclusion simply because it has strong feelings about the contraband discovered.
Indeed, if we were to require reasonable suspicion for searches of electronic devices, we would create special protection for the property most often used to store and disseminate child pornography.
This ignores the fact that electronic devices are most often used to store and disseminate almost everything -- most of it legal. This is the court refusing to even slightly raise the bar for invasive forensic searches just because it doesn't like this particular appellant. This decision allows the government to root around in everyone's personal papers without a warrant just because some people may carry illicit goods across the border. This isn't a rational reason for refusing to even consider raising the bar to reasonable suspicion (which the agents had in this case). This feels more like an emotional decision, rather than one neutrally-applied, and it does nothing to protect millions of innocent travelers from their government.
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Filed Under: 11th circuit, 4th amendment, border searches, device searches, privacy, reasonable suspicion
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What definition is being used, that multiple reports from distinct, trustworthy sources both government and private, indicating that this guy was most likely involved in child pornography, do not constitute reasonable suspicion that this guy is probably involved in child pornography?
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5-10 minutes to save days and weeks
Was just about to leave a comment to that effect. They had investigated him and found suspicious money transfers, getting a warrant should have been trivial. The court salvaged a case that should have been tossed due to warrantless searches, yet it never should have reached that point to begin with.
How lazy and/or incompetent do you have to be to not bother with a warrant when you have actual evidence to justify one, or is it just habit at this point?
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Re: They had reasonable suspicion, but *no warrant*
However, there was quite an invasion of property to find it, and the fourth amendment requires a WARRANT for such invasive searches.
IMO, and I think that of Techdirt, it should not matter where the search takes place, who is being searched (citizen or not, getting hard to tell apart), or why the search takes place.
P.S. By your reading this message, child porn has been planted on the unallocated space on your computer hard drive for distribution via TOR!
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Re:
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'You know, just in case any OTHER agents might be interested...'
That's almost worse. 'They did have reasonable suspicion this time, but just to be clear they didn't need to have it to perform a search.'
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Ummm...
Either this is extremely poorly written, or these judges have never read the Constitution.
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Re:
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I don't have much of a problem with routine searches at the border because that's the way it's always been. My chief complaint is the USA's 100-mile wide constitution-free "border zone".
International travelers would do well to carry an empty throwaway device and to send all your subversive documents, snuff films, animal and child porn, and whatever else might get you in trouble with the law over the internet rather than toting it through a border crossing.
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Re:
But, obviously, "the people" means "the people in the United States," and "at the border" obviously doesn't count as being "inside the US."
Oh, and for the purposes above, "the border" extends 100 miles into the US. For reasons.
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Re:
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Re: Re:
Just get a burner phone that is only used when travelling.
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'It's more of a guideline really, a vague suggestion...'
Assuming they have read it and do understand it, my guess would be that they see it as a general guideline rather than a hard and fast rule. Something that you might want to stay generally within the limits put forth, but where you can ignore it entirely if following it would prohibit something you want to do/allow.
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Well since Gang Rape is A-OK
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Re: 5-10 minutes to save days and weeks
Maybe, like the FBI not bothering to bypass security before pressing by all-writs, the court is trying to set a precedent by not going through proper procedure to suggest the procedure isn't needed?
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Any one?
A gov. representative, Federal or State??
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Hey guys I think I found out why the courts don't want to have systems better than the 1970s.
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Re: Any one?
It won't happen, of course, but if it did, I bet some things would change thereafter.
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Re: Re: Any one?
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Re: Re: 5-10 minutes to save days and weeks
Possible, though I suspect it's a mixture of habit and indifference. If they know that they can get away with doing something without a warrant then why bother getting one? It takes time, it creates a paper-trail, and it accomplishes nothing on their side, so why bother?
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It's the paper trail
That seems to be something to which US law enforcement is adverse, throughout all departments.
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Time to form the NFAA
The 4th has no clause about a Well Regulated Anything to muddy the waters.
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there would be a different ruling if one of the judges were on the receiving end of a 'border search'! same old story though, it aint me, so i dont care and as it's you and i dont like you, fuck you, you can be searched at any time for anything without the slightest bit of privacy under the 4th Amendment being valid. while we're at it, let's throw out the whole constitution and allow the USA to be a complete police-run country where no ordinary citizen has any rights whatsoever!
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Re: Re: Re: Any one?
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Re: It's the paper trail
For about the same reason so many of them object to having cameras that they don't control recording their actions I imagine. It takes it from a straight up 'My word vs yours' into the realm of 'here's what the video shows/the warrant said, and here's what actually happened.'
Much easier to bend/break the law you're tasked to uphold if the only evidence is in your possession, and the only limits are in what the court allows after the fact.
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They will never figure out that you wiped your phone, and not have enough evidence to charge you under Sarbanes Oxley.
If you have Android 6.0 and up, and you do all that, there is no possible way the can get any evidence off your device that you destroyed potential evidence.
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Re: Re:
Under the no electronic theft act, they would have to prove that you downloaded $2500 worth within a 6 month period. Having the files itself would not be a crime. They would also have to prove that you did so before the 5 year statute of limitations expired. All federal crimes, unless a specific statute says otherwise, have a 5 year statute of limitations.
And converting DRM encased files to MP3, for personal use, is not a felony crime under the DMCA, since it is not being done for any kind of financial gain. So a few songs purchased from iTunes that were recorded to cassette tape, then re-recorded to MP3 files would not violate the DMCA, as it was not done for any kind of financial gain. Record to cassettes to either make MP3 files, or to play in the car did not violate the DMCA when I did that years ago because it was not being done for financial gain. Plugging a tape recorder into my computer did not break the DMCA.
I have not downloaded anything illegally from any file sharing service, since 2003, so there would be no problem as the statute of limitations has long since expired.
Pictures of yourself and your fiancee should be OK, as long as you were both over 18 when the pictures were taken. For it to be child porn, once of you would have had to have been under 18 at the time the pictures were taken. That is the law in the USA, Canada, or Mexico.
Some people in here may talk about violating Sarbanes Oxley doing this, but if you have Android 6.0 and above, it can be done in a way, where they will never figure out you wiped information. You first encrypt your entire device, and then factory reset it. Once that is done, the decryption keys to the old encrypted data are lost.
You then overwrite the memory and SD card, and then you reset again. That will guarantee that nothing that was there can ever be recovered, and they will never be able to prove any violation of Sarbanes Oxley.
Canada and Mexico have no equivalent of Sarbanes Oxley, so you would not have to worry about breaking Canadian or Mexican laws.
The way Sarbanes Oxley is written makes it unique to the USA, which is why someone charged under Sarbanes Oxley could flee to Canada or Mexico, as both countries prohibit extradition, if is not a crime there.
That is why draft dodgers in WWII, Korea, and Vietnam went to Canada. Draft dodging is not a criminal offense there, meaning they could not be extradited back to America.
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Re:
I think their reasoning is something like:
If you want to contest the conclusion, you'll probably need to contest the very idea that border-enforcement searches are presumptively reasonable, if not the underlying basis for that idea. How best to do so I am not sure.
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