Fourth Amendment Gets A Small Boost At The Border From Fourth Circuit Appeals Court

from the better-than-maintaining-the-status-quo dept

The Fourth Circuit Appeals Court has handed down a decision [PDF] suggesting the Fourth Amendment might still provide some minimal protection at our nation's borders. Most rights are considered to be waived -- especially those affecting privacy -- thanks to a prevailing national security interest that is seldom challenged by courts. Two years ago, a California federal court looked at the Supreme Court's Riley decision (which instituted a warrant requirement for cellphone searches) and decided that simply didn't apply within 100 miles of US borders.

This precedential decision doesn't cut the government quite as much slack. While it recognizes border security is a national priority, it's not as quick to give federal agencies a free pass on Fourth Amendment exceptions. The underlying facts make it a less-than-ideal challenge, but even so, the court finds enough to work with in the Riley decision to suggest not all border searches should be suspicionless.

Hamza Kolsuz, the appellant, had been caught twice exiting the country with firearms parts in his luggage. Those incidents occurred in 2012 and 2013. The parts were seized both times, with federal agents explaining licensing requirements but choosing not to arrest Kolsuz for violating federal law.

In 2016, the same thing happened again. Agents searched his luggage and found firearms parts. One agent then performed a cursory examination of the phone Kolsuz was carrying. This search the court has zero issues with. It's easily covered by the border search exception.

At a border – or at a border’s “functional equivalent,” like the international airport at which Kolsuz was intercepted – government agents may conduct “routine” searches and seizures of persons and property without a warrant or any individualized suspicion.

Not much Fourth to be had there and the underlying circumstances -- the discovery of more firearms parts being moved out the country without proper export licenses -- gave the agents more reasonable suspicion than they actually needed.

But it wasn't the only search performed on Kolsuz's phone. An offsite forensic search followed the airport search.

At that point, CBP Special Agent Adam Coppolo initiated the second search of Kolsuz’s phone, this one commonly known as a “forensic” search. Coppolo first transported the phone approximately four miles from Dulles to the Homeland Security Investigations office in Sterling, Virginia. There, Computer Forensic Agent Michael Del Vacchio attached the phone to a Cellebrite Physical Analyzer, which extracts data from electronic devices, and conducted an advanced logical file system extraction. The phone remained in airplane mode throughout, so the forensic examination did not reach data stored remotely – or “in the cloud” – and was instead limited to data stored on the phone itself. Even so, the data extraction process lasted for a full month, and yielded an 896- page report that included Kolsuz’s personal contact lists, emails, messenger conversations, photographs, videos, calendar, web browsing history, and call logs, along with a history of Kolsuz’s physical location down to precise GPS coordinates.

This search was challenged, with Kolsuz arguing the phone was no longer being searched under the border exception, but rather as "cident to arrest," subject to the Supreme Court's Riley decision. The court agrees… to a point. It doesn't find that taking the phone offsite for a deeper search affected the "border search" nexus. The search was still related to the transnational crime of weapons smuggling. It's the intrusiveness of the search that troubles the court.

We also agree with the district court that under Riley, the forensic examination of Kolsuz’s phone must be considered a nonroutine border search, requiring some measure of individualized suspicion.

It's not quite a warrant requirement, but it does suggest federal agents should no longer perform highly-intrusive searches without justification. However, the court won't go as far as to institute a warrant requirement.

What precisely that standard should be – whether reasonable suspicion is enough, as the district court concluded, or whether there must be a warrant based on probable cause, as Kolsuz suggests – is a question we need not resolve: Because the agents who conducted the search reasonably relied on precedent holding that no warrant was required, suppression of the report would be inappropriate even if we disagreed.

It's not a hugely helpful decision but it does show this court isn't willing to allow the border search exception to continue to expand, swallowing up the few shreds of Fourth Amendment that remain. Forensic searches must be justified with at least particularized reasonable suspicion, which is more than other courts have been willing to hold.

Filed Under: 4th amendment, 4th circuit, border, border exception, device searches, forensic search, hamza kolsuz, privacy

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