First Circuit Rejects Device Search Challenge, Says The Fourth Amendment Doesn't Apply At Our Nation's Borders

from the we-can't-see-how-we-can-accommodate-both-you-and-the-gov't-so-gov't dept

US borders continue to be lawless places. Not because there's more criminal activity there, but because the Constitution that protects us away from borders (and international airports, etc.) barely applies at all within 100 miles of them.

The First Circuit Court of Appeals is the latest appeals court to decide borders and constitutional protections don't mix. A lawsuit over warrantless, suspicionless device searches has been rejected, with the court finding in favor of the government.

This deepens the split between circuits and their interpretation of the Constitution's effectiveness within 100 miles of the border. The Ninth Circuit said device searches must be limited to searches for contraband. In that case, the government couldn't show evidence of drug dealing would be found on the suspect's phone. The court said the government couldn't use the border search warrant exception to engage in fishing expeditions for other criminal evidence.

The Fourth Circuit also limited border searches, but only required the government to show reasonable suspicion before engaging in a forensic examination of people's phones. Not great, but better than the "this is fine" rulings handed down by the Eleventh Circuit in 2018 and this one [PDF] from the First, handed down last week.

The case handled by the First Circuit is an anomaly. It deals with a civil lawsuit brought by several plaintiffs demanding an injunction blocking the government from engaging in suspicionless device searches. Everything else handled so far by Appeals Courts has arisen from criminal cases with defendants challenging evidence obtained by warrantless (and, in some cases, suspicionless) device searches.

The First Circuit rejects the district court's finding that border officers must have something more than "because we feel like it" to engage in phone searches. It says the Riley decision doesn't apply, even if it's a search incident to an arrest, because the border search exception means no border control officer should ever have to obtain a warrant.

According to the Appeals Court, a warrant requirement would just make things difficult for the government.

[G]iven the volume of travelers passing through our nation's borders, warrantless electronic device searches are essential to the border search exception's purpose of ensuring that the executive branch can adequately protect the border. [...] A warrant requirement -- and the delays it would incur -- would hamstring the agencies' efforts to prevent border-related crime and protect this country from national security threats.

And "basic" searches -- ones that "only" access all unencrypted data resident on the device -- don't need to be supported by reasonable suspicion. According to the court, this is fine because the government simply doesn't have enough time or manpower to trawl through every phone that happens to cross a border.

Basic border searches also require an officer to manually traverse the contents of the traveler's electronic device, limiting in practice the quantity of information available during a basic search. The CBP Policy only allows searches of data resident on the device. CBP Policy at 4. And a basic border search does not allow government officials to view deleted or encrypted files. We thus agree with the holdings of the Ninth and Eleventh circuits that basic border searches are routine searches and need not be supported by reasonable suspicion.

And the First Circuit rejects the Ninth Circuit's narrowing of the scope of border device searches.

We cannot agree with its narrow view of the border search exception because Cano fails to appreciate the full range of justifications for the border search exception beyond the prevention of contraband itself entering the country. Advanced border searches of electronic devices may be used to search for contraband, evidence of contraband, or for evidence of activity in violation of the laws enforced or administered by CBP or ICE.

The border search business will continue as usual in the First Circuit. And the court unhelpfully suggests plaintiffs stop bothering the courts with their constitutional concerns and ask Congress to change to legal contours of device searches. While legislative efforts have been made to create a warrant requirement, it was the US Supreme Court that created the first warrant requirement for phone searches. Congress had nothing to do with one the biggest Fourth Amendment alterations and it's unlikely many current legislators are ready or willing to alter the terms of constitutional engagement at our nation's borders. This isn't even a punt by the First Circuit. It's a shrug that says it's unwilling to honestly consider the privacy impact of hundreds of thousands of suspicionless device searches and would rather have someone else tell it how to think.

Filed Under: 1st circuit, 4th amendment, border search exception, device searches

Bipartisan Bill Would Require A Warrant To Search Americans' Devices At The Border

from the would-be-a-start dept

As we've discussed for many years, Homeland Security and the Justice Department have convinced too many courts that there is some sort of 4th Amendment "exception" at the border, whereby Customs and Border Patrol agents (CBP) are somehow allowed to search through your laptops, phones, tablets and more just because, fuck it, they can. Now bipartisan pairs in both the Senate and the House have introduced a new bill that would require that CBP get a warrant to search the devices of Americans at the border. On the Senate side, the bill is sponsored by Senators Ron Wyden and Rand Paul, and in the House, it's Reps. Blake Farenthold and Jared Polis. Honestly, it's absolutely ridiculous that this kind of bill is even needed in the first place, because the 4th Amendment should just take care of it. But with DHS and the courts not properly appreciating the 4th Amendment's requirment for a warrant to do a search, here we are. Here's a short summary of the bill as well, that notes:

The government has asserted broad authority to search or seize digital devices at the border without any level of suspicion due to legal precedent referred to as the “border search exception” to the Fourth Amendment’s requirement for probable cause or a warrant.

Until 2014, the government claimed it did not need a warrant to search a device if a person had been arrested. In a landmark unanimous decision, the Supreme Court (in Riley v. California) ruled that digital data is different and that law enforcement needed a warrant to search an electronic device when a person has been arrested.

This bill recognizes the principles from that decision extend to searches of digital devices at the border. In addition, this bill requires that U.S. persons are aware of their rights before they consent to giving up online account information (like social media account names or passwords) or before they consent to give law enforcement access to their devices.

That last part is especially important, given how eager Homeland Security has been to start demanding social media passwords as you deplane. Unfortunately, the bill as written only applies to "US Persons" as defined here, meaning that it may not be of much help for a new DHS proposal, also revealed this week, to more aggressively pursue phone and social media searches of foreigners. This is a bad idea for a whole host of reasons we've already discussed, but the short version is that it's bad for security, it's bad for tourism, it's bad for Americans' safety (because other countries will reciprocate). It's just a bad, bad idea.

At the very least, this new bill would block this from happening for American citizens or otherwise legal aliens, but it should go much further. And, of course, who knows if this bill will get any traction, or get signed by the President.

Filed Under: 4th amendment, blake farenthold, border search, border search exception, devices, jared polis, rand paul, ron wyden

Should You Have Any 4th Amendment Rights In An Airport?

from the seems-kind-of-important dept

For many years, we've written about the craziness of the so-called "border search exception" to the 4th Amendment, in which the US government has insisted that the 4th Amendment doesn't apply at the border, and thus it's allowed to search people at the border. The initial reasoning was -- more or less -- that at the border, you're not yet in the country, and thus the 4th Amendment doesn't apply yet. But that's expanded over time -- especially in the digital age. Perhaps, back when people just had clothes/books/whatever in their luggage, you could understand the rationale for allowing a search, but today, when people carry laptops and handheld electronic devices that basically store their whole lives, the situation is a lot scarier. Unfortunately, (with just a few small exceptions) the courts have simply taken the historical ability to search luggage at the border and expanded it to cover electronic devices. Then, things got even more ridiculous, when Homeland Security decided that anywhere that's within 100 miles of the border could be "close enough" to count as a "border search," making the "border search exception" apply. That's... messed up.

There's now a case in the 4th Circuit that shows how this is expanding even further, and on Monday we joined with the Cause of Action Institute and the Committee for Justice to file an amicus brief in the case of Hamza Kolsuz (the ACLU has also filed an amicus brief). Kolsuz had his phone searched under a "border search exception" -- but here's the thing: He was in the process of leaving the country, not entering it. A regular bag search turned up handgun parts in his checked luggage, for which he was arrested. After that, his iPhone was seized and searched without a warrant. Remember, just a few years ago, the Supreme Court ruled that you need a warrant to search a mobile phone in the Riley case. But here there was none.

Law enforcement tried to get around this by claiming that since Kolsuz was at the airport, the search of his phone should count as a border search exception. But that's crazy. Unfortunately, the district court accepted this reasoning -- and now the case is on appeal. We signed onto this amicus brief for a variety of reasons, but a big one is that, as journalists, protecting sources and documents is important. We shouldn't be subject to warrantless searches of our work every time we just happen to be in an airport. As the brief notes:

The District Court erred in denying Mr. Kolsuz's Motion to Suppress and this Court should reverse and remand for a new trial. First, while the border search doctrine constitutes a narrow exception to the otherwise unequivocal Fourth Amendment requirement that the government obtain a warrant to conduct a search, the governmental interests that justify this narrow border search exception were not in play when the Defendant's smartphone was searched incident to his arrest, and this exception therefore cannot be used to justify the search here. The fact that Mr. Kolsuz was arrested and his phone seized at an airport--the equivalent of a border--does not change this case from one that fits squarely within Riley v. California... to one that is suddenly part of a narrow exception of cases justified by the sovereign's customs enforcement rules.

The Court should see this search for what it was: a month-long, detailed, forensic search to gather evidence against Mr. Kolsuz for use in a trial on the very charges for which he was arrested. Since the search here was not actually a border search, the border search exception cannot save it.

Second, the United States essentially seeks a mechanical application of a Fourth Amendment exception even where the interests that justify the exception were not implicated in this case. The dangers of such a mechanical application are readily apparent. People traveling into and out of the United States routinely cross with smartphones or computers that contain the equivalent of "every piece of mail... every picture... [and] every book" a person has.... These individuals include journalists, lawyers, and business travelers with confidential information typically safeguarded under American jurisprudence. Nevertheless, customs agents purport to have unfettered access to the contents of electronic devices carried by such individuals, without any reasonable suspicion or probable cause of a crime, simply by the fact that the individual wishes to leave or enter the United States. This is not the application of the border search exception that the Supreme Court had in mind when it outlined its narrow purview.

Of course, many of us still find the very idea of a "border search exception" to be nonsensical in the first place. But if it's there, the idea that it could be abused in this manner is even more problematic and concerning. Hopefully the 4th Circuit corrects this injustice. We're proud to sign onto this brief, and hope the court listens.

Filed Under: 4th amendment, airports, border search, border search exception, hamza kolsuz, privacy, warrants