border searches – Techdirt (original) (raw)

Another Federal Court Says Warrants Are Needed For Device Searches At The Border

from the the-4th-amendment-must-mean-something dept

Another anomaly has popped up, which has the chance to create enough of a circuit split that the Supreme Court will need to weigh in on this issue. The good news (albeit undercut a bit by “good faith”) is that another federal court has ruled the Riley warrant requirement applies at the nation’s borders.

Here’s more about the case from the Knight First Amendment Institute, which filed a brief in this case arguing for a warrant requirement.

A federal court has held that the government must obtain a warrant based on probable cause before searching travelers’ electronic devices at the border. The ruling came in a case in which a criminal defendant, Kurbonali Sultanov, moved to suppress evidence obtained from a search of his cellphone when he entered the U.S. at John F. Kennedy Airport in New York. In October 2023, the Knight First Amendment Institute at Columbia University and the Reporters Committee for Freedom of the Press filed an amicus brief in the case, arguing that warrantless searches of travelers’ phones violate the First Amendment’s protection of the freedoms of the press, speech, and association, as well as the Fourth Amendment’s protection against unreasonable searches and seizures. The judge relied heavily on the amicus brief in issuing her ruling.

“As the court recognizes, warrantless searches of electronic devices at the border are an unjustified intrusion into travelers’ private expressions, personal associations, and journalistic endeavors—activities the First and Fourth Amendments were designed to protect,” said Scott Wilkens, senior counsel at the Knight First Amendment Institute. “The ruling makes clear that border agents need a warrant before they can access what the Supreme Court has called ‘a window onto a person’s life.”

This ruling has the opportunity to provide more protection for travelers within this circuit, but it will take this decision being upheld by the Second Circuit Appeals Court before anyone can actually expect a warrant requirement to be established.

And it doesn’t help Sultanov much, because while a warrant requirement might be the end result of the ruling, the CBP and DHS officers involved in the multiple searches were awarded good faith because no precedent has been established.

There’s a lot to like about the ruling, even if it’s of little use to Sultanov other than the suppression of some of the statements he made to federal officers. And there’s a lot to be concerned about as well, as testimony from officers involved in the phone searches made it clear it takes almost nothing to initiate the secondary screening that almost always results in device searches. Worse, it shows the supposedly less-invasive search (i.e., the non-forensic search) is way more invasive than travelers might imagine.

Some very enlightening answers were provided to the court, which are recounted in its ruling [PDF]. We’ve already covered the ridiculousness that is law enforcement’s assertions about “source cities” for drug running (which means basically any city with an interstate connecting it to other cities). Here’s what CBP Officer Marves Pichardo told the court about “source countries,” while being questioned about the search of Sultanov’s phone:

If they’re coming from source countries, so Europe and — anyone from Europe, and they’re — they’re traveling there often or they’ve been away from the United States for a certain amount of time, it kind of draws questions to why were they away, what information are they bringing back with them, what kind of baggage are they bringing back with them. Just things to clarify their reasons for them going abroad and coming back into the United States.

Literally just going to Europe and returning is enough to trigger a “secondary” questioning by border officers. I mean, I don’t want Americans to be subjected to the same sort of abuse, but this alone should be enough for European nations to start treating the US as inherently suspicious: a “source” country for criminals, terrorists, or other people just worth keeping an eye on.

Sultanov had a couple of strikes against him. He was returning from Uzbekistan and had already triggered an alert from TECS (Treasury Enforcement Communication System) asserting that he was a “possible purchaser or possessor of child sexual abuse material.” And, indeed, at least one image fitting that description was found during the first (warrantless) search. That triggered a second search — this one backed by a warrant — and the discovery of more images.

But going back to the first search, which the government likes to portray as cursory or basic and somehow less intrusive. It’s actually extremely intrusive. The same CBP officer said this search is unlimited. Any app that can be opened will be opened. Any communication can be read. All emails can be accessed. Basically, anything that doesn’t require a password to access can be accessed by officers during this screening. All without a warrant.

And if an app does ask for a password, federal officers will simply demand that from the traveler. Much like access to the device itself, this is treated as something the government is owed by travelers. If they refuse to hand over passwords, the government will simply seize the phone. At that point, the traveler may be free to go, but they’ll have to move forward without the essentials of everyday life.

Then there’s this, which shows federal officers will exploit people’s lack of knowledge of the law (along with a language barrier in this case) to demand things they can’t legally demand.

Sultanov’s account of his interaction with Pichardo, as memorialized in an affidavit he submitted in support of his motion to suppress, differs in certain respects from Pichardo’s testimony. Sultanov alleges that he “refused to provide the phone and the phone’s password” to the officers in the secondary inspection area. Once he refused, he was provided with a computer printout that looked like a flyer (presumably the “tear sheet” Pichardo described). Sultanov alleges that he could not understand the printout and asked for clarification. In response, the CBP officers told Sultanov that the “printout states that [he has] to provide them [his] phone’s password and the phone and [he doesn’t] have a choice or right to refuse to provide it.”

When the court says “differs,” it’s showing a bit of deference to the government. The officer’s testimony only differed in the fact that Pichardo either claimed he “couldn’t recall” saying certain things or was extremely vague about the specific things he said to Sultanov during this screening. As for the “tear sheet,” it was in English (not Sultanov’s native language) and contains nothing informing travelers they have the right to refuse to provide passwords and/or hand over devices for “inspection.”

The end result is the warrant requirement, with the court pointing out that it’s simply astounding for the government to argue it should be able to search phones without one simply because that phone happens to have crossed a border. These are arguments that didn’t work in the Riley case and they shouldn’t work here either.

The government takes the remarkable position here that cell phones should not be treated any differently for Fourth Amendment purposes than any other property a traveler carries across a border. It urges this Court to deem such searches “routine” and to hold that no individualized suspicion whatsoever is needed for border officials to search a traveler’s cell phone upon entry into the United States. In essence, the government argues that no practical limits should be placed on cell phone searches at the border whatsoever, as long as they fall into what agents categorize as a “manual” search (i.e., one unaided by extrinsic technology but limited only by the border agents’ time and interest in examining the phone’s contents). However, “the level of intrusion into a person’s privacy is what determines whether a border search is routine.” And the government’s position fails to account for both the substantial privacy intrusions at issue here, as well as the Supreme Court’s Fourth Amendment jurisprudence concerning other advanced technologies that carry with them the potential to reveal vast amounts of the owner’s personal data.

The government still wants to pretend a phone is no different than the contents of a person’s pockets or whatever luggage they might be bringing across the border with them. While there’s a justifiable government interest in preventing physical contraband from crossing the border, the justification falls apart when it’s data, which cannot be stopped at the border — not when it’s available through cloud storage or from websites located outside of the US but easily accessible by US residents and citizens.

That means no “manual” searches without a warrant.

Many courts have found the distinction between manual and forensic searches of electronic devices to have constitutional significance. This Court concludes, however, that the privacy intrusion of a manual search is substantially the same, for Fourth Amendment purposes, as the privacy intrusion of a forensic search, at least as those searches are conducted by CBP at the border. Each involves such a vast intrusion on a traveler’s privacy that, under the Fourth Amendment, both must generally be supported by a warrant.

Good faith saves the search in this case. But there will be no good faith exception to the warrant requirement moving forward. This will undoubtedly be appealed because the US government has zero interest in respecting rights anywhere near a national border or within our multiple international airports. It will soon be in the Second Circuit’s hands. Hopefully, the Appeals Court will do the right thing and apply the Riley warrant requirement to device searches at the border.

Filed Under: 4th amendment, border search exception, border searches, cbp, privacy

Seventh Circuit Sets Down Precedent, Says ‘Riley’ Warrant Requirement Doesn’t Apply At US Borders

from the Constitution-still-optional-at-the-borders dept

We didn’t really need more precedent assuring us our rights don’t mean anything at the borders, but we got it anyway.

Within 100 miles of any US border (and that includes international airports), courts have generally ruled that rights are optional. If they seem to be getting in the way of “securing” the border, they have to go. And that’s why intrusive device searches have increased steadily in recent years, despite the Supreme Court’s 2014 Riley decision. That ruling said warrants were required to search cell phones because cell phones, unlike someone’s trunk or pants pockets, contained a wealth of personal and private information previously unseen in the history of the nation.

Given the rationale for the warrant requirement, you’d think courts would extend it to cover the nation’s borders. But no court has. When it comes to border searches, Riley simply doesn’t apply.

Not every court has reached this conclusion. A federal judge in the 2nd Circuit said Riley applied at the border. But that ruling was never ratified at the appellate level, so it hardly changes things in the Second Circuit.

The Ninth Circuit Appeals Court — which covers the largest amount of southern border (which is where pretty much all the intrusion takes place) — did place some restraints on warrantless border device searches, limiting them to searches for “contraband.” How much that changed anything is unknown, but it was a small step further than any other circuit has been willing to go.

The circuit with the second largest amount of border territory (the Fifth Circuit) hasn’t had any qualms about eradicating the Fourth Amendment at border crossings. An unequivocal “no warrants needed” was handed down by that circuit late last summer.

The Seventh Circuit Appeals Court recently revisited this issue. Its earlier ruling on the issue was pretty much a punt. The court decided it didn’t need to deliver any ruling on the issue at that point because it could use the “good faith” release valve to sidestep anything approaching precedent.

The primary positions staked out by the parties could not be more starkly contrasted. The defendant argues that nothing less than a warrant authorizes a search of electronic devices at the border. The government asserts that it may conduct these searches without any particularized suspicion at all. In the end, though, we need not adopt either of these positions, and indeed may avoid entirely the thorny issue of the appropriate level of suspicion required. Instead, we affirm the district court’s denial of the motion to suppress because these agents acted in good faith when they searched the devices with reasonable suspicion to believe that a crime was being committed, at a time when no court had ever required more than reasonable suspicion for any search at the border.

That’s how it went in April 2019. Here’s how it’s going now:

The “longstanding recognition that searches at our borders without probable cause and without a warrant are nonetheless ‘reasonable’ has a history as old as the Fourth Amendment itself.” United States v. Ramsey, 431 U.S. 606, 619 (1977). That history leads us to join the uniform view of our sister circuits to hold that searches of electronics at the border—like any other border search—do not require a warrant or probable cause, and that the kind of routine, manual search of the phone initially performed here requires no individualized suspicion. We affirm.

That’s from the opening of the appeals court decision [PDF], one that portrays a CBP agent’s trawl through a traveler’s phone as a “routine, manual search,” which included demanding (and obtaining) a passcode, digging through images stored on the phone, and unlocking (with the provided passcode) another application where more images of child sexual abuse were discovered.

The traveler (and the person seeking to suppress the evidence discovered on his phone) is Marcos Mendez, a US citizen who had previous arrests for solicitation of a child and CSAM possession. So, he was already on the CBP radar. That being said, it’s a bit chilling to realize this is what the CBP thinks is an indicator of child sexual abuse — something the Seventh Circuit tacitly endorses by placing it in the decision without further comment:

Mendez also fit the profile for child-pornography offenders: a single adult male traveling alone.

Well… OK, then. The supposed connective tissue was the fact that Mendez traveled alone to Ecuador, which is apparently just as suspicious because… well… rank speculation, I guess?

[M]endez was returning from Ecuador, which CBP officers classified as a potential child trafficking source country.

Couldn’t literally any country be considered a “potential child trafficking source country?” I mean, we’re just talking potential here. It’s not other countries, which are known destinations for people seeking to engage in sex with minors. All this says is that Ecuador, like every other country in the world, has minors in its population and those minors have the potential to be trafficked for sex.

Anyway, the Seventh Circuit isn’t going to let itself get bogged down by questionable assertions about suspicion asserted by our valiant border officers. Instead, it’s just going to get down to business aligning itself with every other circuit by going on (permanent) record with a free pass on constitutional violations anywhere people might enter or exit the United States.

And, in doing so, the court says things the Supreme Court didn’t say about the Riley decision, even as it uses a very selective direct quote. According to the Seventh Circuit, Riley doesn’t apply at the borders because the incident underlying that historic decision did not occur at the border.

Riley involved the search incident to arrest exception and “carefully tailored its analysis to that context.” Wood, 16 F.4th at 533. What is unreasonable after arrest may be perfectly reasonable at customs, as Riley itself anticipated. See Riley, 573 U.S. at 401–02 (“[O]ther case-specific exceptions may still justify a warrantless search of a particular phone.”)

But the Seventh Circuit’s blanket exception for border searches ignores a crucial part of the very decision it quotes:

“[O]ther case-specific exceptions…”

This ruling has nothing to say about specifics. While it’s certainly true a known sex offender will receive greater scrutiny when entering or exiting the country, the ruling here applies this line of thought to everyone crossing borders, whether or not any reasonable suspicion exists to justify the seizure and search of someone’s phone.

There’s evidence here this search was likely justified under the lower level of constitutional protections at our nation’s borders, but the Seventh Circuit looks at a case-specific exception and makes it a blanket exception by refusing to undo precedent that says federal officers can pretty much do whatever they want, so long as it happens within 100 miles of any border crossing.

So, it’s not a great ruling or even a good one. It just is. And because no appellate circuit has been willing to upset this free-for-all at the border by instituting a warrant requirement, every other appellate circuit thinks it’s OK to ignore the greater message of the Riley decision (that being that almost any search of a person’s phone is intrusive) in favor of just keeping their heads down and allowing the status to remain quo.

Filed Under: 4th amendment, 7th circuit, border searches, cell phone searches, device searches, riley, warrant

Fifth Circuit Says Law Enforcement Doesn’t Need Warrants To Search Phones At The Border

from the never-mind-the-precedent dept

In 2014, the Supreme Court made it clear: phone searches require warrants. While it did note the case involved a search “incident to an arrest,” the precedent was undeniable. If a phone search attached to an arrest requires a warrant, it would logically follow that any phone search by law enforcement — even those not subsequent to an arrest — requires a warrant.

Since then, multiple federal courts have come to the opposite conclusion in cases involving searches of phones at borders or international airports. According to these judges, the Riley decision simply doesn’t apply when border security is in play. And it doesn’t matter whether the searched device belongs to an American citizen or a resident of a foreign country.

The law shouldn’t be unsettled, but it is. There’s no consensus at the appellate level. Nor is there one at the lower levels. All we have is a lack of clarity to work with. One federal judge (Jed Rakoff) said warrants are needed for “some” border phone searches — specifically “forensic” searches in which the government makes itself a copy of all data on a person’s phone.

The Fourth Circuit Appeals Court also made a limited finding in favor of Riley’s warrant requirement, stating that border law enforcement officers must have at least articulable suspicion to engage in forensic searches. That’s still a long way from probable cause, but it’s more than the “nothing at all” standard CBP and Border Patrol officers have been held to.

The Seventh Circuit had a chance to set precedent in another border device search case, but instead chose to save the question for a later day, leaving the “because border security” rationale for warrantless searches undisturbed.

This indecision has led to a steady increase in border device searches, driven by the ubiquity of smartphones and no one at the judicial level willing to decisively tell border officers a warrant is needed.

Texas immigration lawyer Adam Malik has given the Fifth Circuit a chance to set precedent more aligned with the Supreme Court’s 2014 Riley decision. Unfortunately, the Fifth Circuit has decided a forensic search of Malik’s device (which was held by the CBP for three weeks) isn’t a violation of the Fourth Amendment. (via FourthAmendment.com)

Malik sued the DHS and CBP in early 2021, after his phone was seized, searched, and held by the CBP. One of Malik’s many concerns was the government’s warrantless access to privileged attorney-client information. This is what happened during the search Malik sued over.

In response to Mr. Malik’s assertion of privilege, Officer Sullivan informed Mr. Malik that DHS was seizing the iPhone and that the digital contents would be searched. Officer Sullivan did not disconnect the iPhone from the internet or the communications network. He failed to take action that would protect the iPhone from accessing the internet or a communications network. Officer Sullivan ordered Mr. Malik to leave the deferred inspection area without the iPhone while the iPhone still was connected to the internet and a communications network.

Neither Officer Sullivan nor any other employee of Defendants asked Mr. Malik to disable connectivity of the iPhone to the internet or to any network. Had Officer Sullivan or any employee of Defendants offered to permit Mr. Malik to place the iPhone in airplane mode upon or after seizure of the iPhone, Mr. Malik would have done so immediately.

On top of not preventing the phone from continuing to collect data and communications, the DHS held on to Malik’s phone for five months. According to this, from the Fifth Circuit’s decision [PDF], part of that time was given over to the government’s efforts to avoid accessing privileged information.

The phone’s passcode feature prevented the border officers from accessing the phone, and thus from searching it, so they sent it to a forensics lab. The lab bypassed the phone’s security features, extracted the phone’s data, and returned the phone and the data to DHS. All of that took about three months. DHS then used a “filter team” to screen the extracted data for any privileged materials. That took about two more months. Once the filter team had finished, they provided the border officers in Dallas with “two thumb drives . . . consisting of the data that the filter team determined [the officers] were authorized to search.” DHS then conducted a border search of that data, and DHS returned the phone to Malik on May 21, 2021.

What’s not explained here is what the DHS was searching for. That it has the power to engage in warrantless searches of devices doesn’t automatically create reasons for it to do so. Very little was explained to Malik, other than that the officers could do this and, therefore, they were going to do this. All of this happened despite Malik being a government-approved member of the CBP’s Global Entry Trusted Traveler Program, which should have seen him subjected to less scrutiny when crossing borders, rather than what he was actually subjected to.

Following some hard questions posed to the DHS by Senator Ron Wyden, Malik sought to obtain more information to use in his lawsuit against the agency.

Discovery closed on February 11, 2022. Malik moved to reopen discovery a few weeks later, citing a public letter that United States Senator Ron Wyden sent to DHS’s Inspector General. Among other things, the letter alleges that DHS conducted “bulk surveillance of Americans’ financial records” by collecting troves of “transaction data” from Western Union. While the letter asks DHS to investigate these allegations, it does not address individual border searches, phone records, decryption, or DHS’s data-retention policies. The district court denied Malik’s motion.

The court denied this motion. Then it decided in favor of the DHS, ruling it had not violated Malik’s rights with this search of his phone.

Unfortunately, the Fifth Circuit Appeals Court (which splits the US-Mexico border with the Ninth Circuit) agrees with the lower court. No rights violation here, not when border security is on the line.

Malik argues that we should extend Riley v. California to border searches. Yet, for “[routine] cell phone searches at the border, our sister circuits have uniformly held that Riley does not require either a warrant or reasonable suspicion.” We have held the same. Even for non-routine searches, our sister circuit “have differed only as to whether reasonable suspicion is required.” We are not aware of any circuit court that has extended Riley’s warrant requirement to the border.

“Ordinarily, we would expect a party encouraging us to adopt a new constitutional [theory] to convincingly distinguish adverse authorities” and “to discuss the contours of the doctrine [he] wishes us to adopt. Malik has not done any of that. He has not even attempted to argue that the search was anything other than routine. He also has not discussed or analyzed Riley at any length, nor has he addressed the fact that “[e]very circuit that has faced this question has agreed that Riley does not mandate a warrant requirement for border searches of electronic devices, whether basic or advanced.

Instead, Malik has asked us to “intervene” and hold “that a judicial warrant is required at this time for the search of an attorney’s confidential client files and communications at the border.” Malik’s request for our “intervention” is itself a tacit concession that our precedent does not currently require a warrant for cell-phone searches at the border. We express no view on how the border-search exception may develop or be clarified in future cases, but we do expressly decline to address it further here.

So, like the Seventh Circuit, the Fifth Circuit decides analyzing Riley in terms of border searches is a question for another day. And, by passing on this opportunity, it ensures the next time someone asks the same question, it will be able to refer to its previous punt to kick the constitutional can further down the road.

That being said, the lawsuit isn’t entirely dead. Malik also wants to ensure the DHS destroys all the data it pulled from his phone, which includes plenty of privileged material. Not only were there attorney-client communications, but likely information dealing with ongoing immigration litigation against the government — work product that is likewise shielded from government snooping.

The Fifth Circuit agrees Malik is right to demand this form of expungement and the DHS is wrong to refuse to destroy this seized data unless Malik drops his lawsuit. (All emphasis in the original.)

In the district court, DHS argued that “the information is being retained only because Malik requested a litigation hold,” and that Malik cannot not rely on this self-inflicted injury to show standing. And, on appeal, DHS has represented that it will “destroy the remaining data in its possession and will be happy to provide an appropriate certification to Malik that all data in the government’s possession has been destroyed and that no data was transferred to any other governmental or nongovernmental entity or person” as soon as these “proceedings” conclude. DHS made similar representations to the district court. In other words, DHS argues that this lawsuit is the only obstacle separating Malik from the expungement that he seeks.

We do not agree that Malik’s injury is self-inflicted. The injury is that DHS still possesses privileged information that it unlawfully seized from his phone. Malik did not volunteer that data to DHS, and he has no control over how DHS handles it. That is why Malik came to court. DHS argues that it will delete the data if Malik non-suits this case. But while the possibility of an alternate form of relief confirms that Malik has suffered an injury, it does not mean that he caused the injury. That is especially true here, where Malik lacks any power to redress his injury. Instead, the most he can do is non-suit this case and trust DHS to delete the data. Where redress cannot be self-actuated, we are hesitant to conclude that an injury is self-inflicted.

We also do not agree that DHS can moot Malik’s suit merely by promising to delete the data once the suit is over. By its very nature, a promise of some future action cannot redress Malik’s injury now. DHS’s promise, then, supports no more than a prediction that this case could be moot in the future. But it is not presently moot. Rather, DHS still has Malik’s data. Just as we will not rely on “conjectural or hypothetical” facts to find that standing is present, so too we will not rely on predictions and what-ifs to find that standing is absent. We hold that Malik has standing to seek expungement.

That’s great but there’s nothing in here for Malik, other US citizens, or their constitutional rights. When it comes to the border, the house always wins. What Malik is being given here is nothing more than existing precedent regarding expungement of privileged material. What no one is being given is any more protection from their own government just because they cross borders or seek to board international flights. When it comes to anything the government calls a “border,” the rights we were guaranteed are mostly null and void.

Filed Under: 4th amendment, 5th circuit, adam malik, border searches, phone searches, riley, warrants

Federal Judge Says ‘Riley’ Applies At Border; Warrants Are Needed For Some Cell Phone Searches

from the well-well-well-if-it-isn't-the-4th-amendment dept

In 2014, the Supreme Court ruled that law enforcement officers need a warrant if they want to search people’s cell phones. Since that day nearly nine years ago, no federal court has managed to make that ruling stick at our nation’s borders, which have been declared Not-Quite-the-United-States when it comes to our rights.

The “Constitution-free zone” — the end result of our government’s insistence guaranteed rights* just get in the way of securing the border — sets the parameters for phone searches, rather than the ruling handed down by the top court in the land.

At the appellate level, the Fourth Circuit said border search warrant exemptions nullify Riley, allowing the government to memory-hole Supreme Court precedent anywhere people might be entering or exiting the country, including our nation’s many international airports.

The Seventh Circuit didn’t go as far as blessing blanket border exceptions to the Riley ruling. But it also didn’t go far enough in the other direction, settling for a Solomon-esque splitting of opposing arguments (plaintiff: all searches need warrants; government: no searches need warrants) that, unlike that Biblical story, really didn’t leave either contestant with a clear-cut win. The court shrugged and said, “Maybe someday we’ll actually generate some precedent. But today is not that day.”

The only appeals court that has come close to subjecting border searches to the Riley warrant requirement is the Ninth Circuit, whose jurisdiction covers a lot of this nation’s southern border. That ruling didn’t erect a warrant requirement, but it did place limits on border device searches. If border agents want to engage in searches predicated on nothing more than reasonable suspicion, they can only search phones for contraband. This means they can’t search phones for evidence of criminal activity. Instead, they must reasonably suspect the phones themselves are home to illegal content.

At some point in the near future, another appeals court (the Second Circuit, to be exact) will be asked to resolve this question. And that’s because the government just got an answer it didn’t like about border device searches from Judge Jed Rakoff — the federal judge that once very politely told the DOJ to go fuck itself because it clearly didn’t care its prosecutors were hiding information from defendants and relying far too often on junk science to secure convictions. (h/t Orin Kerr)

Rakoff’s decision [PDF] deals with the warrantless search of Jatiek Smith’s phone at the Newark (NJ) airport following a failed attempt to travel to Jamaica. (Smith was refused entry by Jamaican customs agents.) The forensic search performed by the CBP uncovered communications with gang members and possible evidence of insurance fraud. Smith filed a motion to suppress this evidence, alleging the search was unconstitutional. The court agrees.

Smith argues, first, that this search violated his Fourth Amendment rights. To this much of his motion, the Court agrees. While border agents have very substantial latitude to search a person’s body and effects without a warrant or probable cause during a border crossing, the Supreme Court has now made clear that searching the data contained on a person’s cell phone is not like searching his body or pockets. Rather, searching a cell phone will often allow law enforcement to learn all there is to know about its owner’s past movements, communications, and transactions — reams of information that differ quantitatively and qualitatively from the sorts of information a person could ever have carried with him before the advent of modern “smart” phones. See Riley v. California, 573 U.S. 373 (2014). Moreover, the vast majority of such information will likely have no connection to the traveler’s reasons for crossing the border on a given day.

Furthermore, unlike a traveler’s luggage or cargo — which, quite obviously, is not yet in the country at the time the traveler presents herself for inspection at the border and can therefore be stopped from coming in — the information on that traveler’s phone most likely already exists outside the phone (in cloud storage or other backups), such that a border search is far less likely to actually prevent anything unwanted from entering or leaving the country.

Since it bears so little resemblance to the historical definition of a border search (that of a person and perhaps the bags they physically carry), it cannot be treated the same way, especially with this particular Supreme Court precedent in play.

[S]uch searches extend the Government’s reach far beyond the person and luggage of the border-crosser — as if the fact of a border crossing somehow entitled the Government to search that traveler’s home, car, and office. The border search exception does not extend so far.

That’s how Judge Rakoff sees it. The border search exception cannot be applied to forensic searches of people’s devices and phones. Warrants are needed.

It’s a good call, but it’s undone by the CBP being granted the good faith exception. Unfortunate, but it’s probably the only sound outcome. There is no precedent that states affirmatively that warrants are needed to search cell phones at the border. What precedent there is either does not engage directly with this part of the issue or simply agrees with the government that the Constitution simply does not apply with 100 miles of any US border entry.

However, the government displayed plenty of bad faith en route to this ruling that, going forward, warrants are needed for device searches.

First, let’s compare and contrast the testimony pertaining to the government’s seizure of Smith’s phone:

Without seeking a warrant, HSI and FBI agents requested CPB agents to search Smith upon his return to Newark Airport “pursuant to [their] border search authority.” There, border agents searched Smith’s bag (in which Smith was carrying just under $10,000 in cash), seized Smith’s phone, and demanded his password. Smith claims he repeatedly refused to give his password, relenting only after he was told that “[i]f [he] did not open the phone [he] could be held without charge for as long as it took to open the phone.” The Government more cryptically represents that “Special Agents . . . requested Smith’s passcode, which Smith eventually provided.”

The CBP made a forensic copy of the phone’s contents, which was then searched several times by several law enforcement officers and agencies. The information discovered during this warrantless search was used as probable cause for a search — a search that had been underway thirty-eight days before the government even thought about getting a warrant.

And while good faith is awarded this time, it won’t happen again in this court. Judge Rakoff doesn’t like any of the government’s arguments which, if taken at face value, would vastly increase the government’s power to perform warrantless searches not just at the border, but anywhere a person might conceivably stash evidence of criminal activity. (Emphasis in the original.)

This Court agrees that the governmental interest underlying the border search exception is different from that underlying the search-incident-to-arrest exception, and it acknowledges that the former extends to preventing a wide variety of harmful things from entering the country.

But, as discussed above, “things” are different from “data”, so it is hard to see why the interests underlying the border search exception extend to the data stored on a traveler’s cell phone. To be sure, that data may contain information relevant to the Government’s determination as to whether a person should be allowed entry, but the Government has little heightened interest in blocking entry of the information itself, which is the historical basis for the border search exception. The Government’s more general investigative interest in data about the person or thing entering the country is entirely incidental to the fact of the cell phone being carried over the border, and could just as easily be relied upon to support searches of the person’s home, records, or past mail far away from the border.

The reconciliation of the competing interests may be unsatisfactory. There’s no suppression and the government gets to keep the evidence it obtained illegally. But the entire decision is well-written and thoughtful. And it does a masterful job poking holes in the arguments made by the handful of appellate-level courts that have talked themselves into ruling the Supreme Court’s Riley decision somehow doesn’t apply to Americans and their cell phones if they’re anywhere near a border. Whether or not this will have much weight when the Second Circuit takes up this case remains to be seen, but it does provide plenty of useful arguments for criminal defendants who’ve been subjected to similar border searches.

Filed Under: 4th amendment, border searches, cell phone searches, device searches, riley

Device Searches Have Created A Massive Database Of American Phone Data CBP Agents Can Search At Will

from the extending-the-constitution-free-zone-across-the-country dept

The “Constitution-free zone” — the area within 100 miles of any border crossing, port of entry, or international airport — now apparently covers the entire country in perpetuity.

Border agencies — mainly Customs and Border Protection (CBP) — have steadily increased the number of device searches they do every year. Sometimes the search is limited to scrolling through an unlocked phone, an act that can be performed by a CBP agent even without reasonable suspicion. Then there are the more invasive searches, where the phone is seized temporarily and hooked up to a device to extract information.

These searches should be covered by the Fourth Amendment, thanks to the Riley decision. But, because they happen near the border (or at an inland international airport), they aren’t. National/border security concerns are elevated above enshrined rights to allow invasive searches with little more than a bit of suspicion. Within this constitutional carve-out, the CBP operates. And the number of invasive device searches it performs has increased exponentially in recent years.

As concerning as this development is, it’s even more concerning that the CBP appears to have taken a hands-off approach to preventing abuse of the search process or abusive searches of the data collected from these searches. Despite this program having been in operation since 2007, the CBP’s Office of Field Operations (OFO) has done almost nothing to measure the program’s effectiveness or ensure searches are handled properly and responsibly. This is from a 2018 Inspector General’s report:

[B]ecause of inadequate supervision to ensure OFO officers properly documented searches, OFO cannot maintain accurate quantitative data or identify and address performance problems related to these searches. In addition, OFO officers did not consistently disconnect electronic devices, specifically cell phones, from networks before searching them because headquarters provided inconsistent guidance to the ports of entry on disabling data connections on electronic devices. OFO also did not adequately manage technology to effectively support search operations and ensure the security of data.

All of that leads us to this: the DHS is basically running a program that allows over 3,000 CBP officers to search a database compiled from data pulled from tens of thousands of devices, all without warrants, reasonable suspicion, or even adequate oversight. Here’s Drew Harwell with the details for the Washington Post:

U.S. government officials are adding data from as many as 10,000 electronic devices each year to a massive database they’ve compiled from cellphones, iPads and computers seized from travelers at the country’s airports, seaports and border crossings, leaders of Customs and Border Protection told congressional staff in a briefing this summer.

The rapid expansion of the database and the ability of 2,700 CBP officers to access it without a warrant — two details not previously known about the database — have raised alarms in Congress about what use the government has made of the information, much of which is captured from people not suspected of any crime.

That’s all taken from a briefing delivered to Congress earlier this summer, but only made public after Senator Ron Wyden publicly demanded answers from the CBP. His letter [PDF] exposes the breadth and depth of this previously secret program.

Getting into the database is easy: just be anywhere CBP officers are and carry a device. CBP officers will then misinform you about your rights and their intentions while searching your device, should they choose to go that route. Travelers are provided with some info, but much of it is (apparently deliberately) inaccurate, as Wyden’s letter points out.

CBP told my office that it provides travelers a “tear sheet” explaining their rights when it seizes a traveler’s device and copies their data. However, CBP confirmed to my office during a June 20, 2022 briefing that its officers are only required to provide the tear sheet at some time during the search, not at the beginning. Thus, travelers might not see it until after they are coerced into unlocking their devices.

Moreover, the tear sheet provides misleading information regarding their rights and CBP’s authority to search their devices. The tear sheet does not tell travelers that CBP will retain their data for 15 years and that thousands of DHS employees will be able to search through it. In fact, the tear sheet misleadingly suggests that CBP will not retain a copy of travelers’ data absent probable cause. The tear sheet also states that collection of travelers’ information is “mandatory,” but fails to convey that CBP may not arrest an American or prevent them from entering the country if they refuse to tell CBP their password.

The CBP is leveraging the lack of constraints in areas surrounding “borders” to engage in routine warrantless searches of devices. Then it leverages this lack of informed consent and/or border security mandates to compile a massive database that can retain 15 years of info it then searches seemingly at will. When people are faced with the prospect of not being allowed to move on toward their destination, they’ll often comply, especially when they are mislead both by CBP officers’ assertions and the “information” sheet full of incorrect information.

Lack of information is the guiding principle for the collection and use of this data. Wyden’s letter notes the CBP retains no records detailing the number of times it performs these advanced searches that pull all data from devices, nor how often it performs advanced searches in comparison to basic searches, which do not involve the 15-year retention of data. It also has not provided any data on how many devices have had their contents added to this database, nor how often officers access this collection.

The reason for this lack of data is explained later in Wyden’s letter. The CBP simply does not feel like this is information worth collecting. And it doesn’t appear to believe it should be closely monitoring use of this database full of Americans’ personal information.

CBP confirmed during this briefing that it stores this deeply personal data taken, without a warrant signed by a judge, from Americans’ phones for 15 years and permits approximately 2,700 DHS personnel to search this data at any time, for any reason. CBP officials also revealed that government personnel querying the data are not prompted to record the purpose of the search, even though auditable records of this sort are an important safeguard against abuse.

Wyden urges the CBP to align itself with Ninth Circuit precedent — precedent that only allows forensic examination of travelers’ phones to search for contraband. This would limit unreasonable searches and force the CBP to perform more direct oversight of the program to ensure rights aren’t violated.

But until that happens (and it will take the Supreme Court to make it happen), the CBP is going to continue doing what it’s doing. That its secret dragnet has been exposed won’t stop it from adding device contents tens of thousands of times a year. And it will take more than some Congressional heat to force it to collect and retain records on its own actions with the same enthusiasm it collects data from innocent Americans’ devices. Rather than waiting for the right case to land in the Supreme Court, Congress needs to take action to protect rights at the border and recognize that rights shouldn’t be suspended just because of where someone happens to be momentarily located.

Filed Under: 4th amendment, border searches, cbp, device searches, phone searches, ron wyden

If Courts Won't Protect People's Phones At The Border, Congress Needs To Act Now

from the it's-time-to-move-past-'but-the-border-tho' dept

Invasive searches of people’s phones at border crossings and international airports have become standard operating procedure for US border control agencies. The usual justifications have been made: national security and preventing contraband from crossing the border.

Those claims may have some merit, but it doesn’t explain why the number of invasive searches has exploded over the past few years, even though the number of border crossings hasn’t. It also doesn’t explain why agencies like Customs and Border Patrol (CBP) continue to claim the program is too important to be curtailed, yet somehow not important enough to be competently supervised or quantified.

For the most part, courts have agreed with the government’s assertions that searching devices without warrants or (in many cases) articulable suspicion is just good national security work. Only one court has pushed back, requiring searches to be limited to rooting out suspected contraband, rather than just examining phone contents until agents find something to get reasonably suspicious about.

The Supreme Court said warrants are needed to search the contents of cell phones. Unfortunately, our nation’s borders have long been considered blanket warrant exceptions — an exception that extends 100 miles inland from every border and international airport. It also limited this to searches “incident to an arrest,” and in many cases, people whose devices are searched at the border are never arrested.

This ruling tends to work well away from the border, since seizures of phones without an arrest is generally considered an obvious violation of rights, which makes any subsequent searches illegal. But this phrase doesn’t do much to limit searches at the border where rights are assumed to be mostly waived, making the initial seizures lawful, paving the way for warrantless searches that may violate the Fourth Amendment, but in a place where courts have said violating the Constitution is cool and good.

And so the courts, having abdicated their checks and balances mandate, tell plaintiffs “hey, if this bothers y’all, maybe ask Congress to get it changed.” Because if Congress says it’s ok to waive all rights near the border, who are the courts to decide direct Supreme Court precedent applies to border phone searches?

Well, maybe the courts need to do a little local application because Congress can’t be arsed. A bill to restore the Fourth Amendment at the border has been submitted and denied in the past. It’s back again. Maybe this time — given the increasing distrust of law enforcement and federal border control efforts — it will get further than it has in the past.

Here’s the EFF’s summary of Ron Wyden’s “Protecting Data at the Border Act,” which (against all sanity) offers up the novel idea that the federal government should respect people’s rights.

Unfettered border searches of electronic devices pose a significant threat to personal privacy. That’s why we urge Congress to pass the Protecting Data at the Border Act, a bill recently re-introduced by Sen. Ron Wyden (D-OR) and Sen. Rand Paul (R-KY) that would create a warrant requirement for these types of searches, thereby protecting our constitutional rights at the border.

As the EFF points out, this is the third attempt to restore the Fourth Amendment in the federal government’s gray area — the large parts of the United States known unofficially as the “Constitution-Free Zone.” The bill wouldn’t go so far as to enact a warrant requirement, but it does add a bunch of protections that currently don’t exist.

Consent must be obtained in written form. No more Google Translate or pidgin Spanglish from border control officers who will take consent even if it’s expressed with upside down question marks. And it’s not all of the Fourth Amendment, but it’s more than we have now: border control officers need to have probable cause someone committed a felony before seizing their device. If they don’t have that, any post-seizure search would be a de facto rights violation.

There are also reporting requirements that mandate more transparency from border control agencies on searches and seizures of devices. And agencies are forbidden from retaining communications and data that can’t be shown to be related to criminal investigations or charges.

It’s not perfect but it’s far more than we have now. And, if enacted, would curb CBP’s thirst for warrantless searches, forbidding it from getting the boys in the boat to sail out on fishing expeditions just because. This is the third try for Wyden’s bill. Let’s hope it’s the charm.

Filed Under: 4th amendment, border, border exception, border searches, cbp, device searches, protecting data at the border act, ron wyden

Federal Court Says ICE, CBP's Suspicionless Searches Of Electronic Devices Is Unconstitutional

from the warrant-requirement-in-our-lifetime? dept

There’s a bit more Constitution in the “Constitution-free zone.” A federal court in Massachusetts has ruled [PDF] border agents can no longer perform suspicionless device searches. This ruling aligns itself with the decision handed down by the Ninth Circuit Court of Appeals earlier this year. If the government wants to dig into travelers’ phones and laptops without a warrant, it needs to show it believes contraband will be located on the seized device.

It’s not quite a warrant requirement, which would align it with the Supreme Court’s Riley decision. No court has been willing to apply this decision at the border, but requiring reasonable suspicion is a step in the right direction.

The lawsuit was filed by 11 travelers whose devices were seized and searched by CBP and ICE agents. For some of the plaintiffs — represented by the ACLU — this happened multiple times. The court provides a snapshot of the intrusions central to the group complaint.

Without recounting the nature and circumstances of all of the Plaintiffs’ searches, a sample of them is illustrative. Nadia Alasaad has twice had her iPhones searched at the border over her religious objections to having CBP officers, especially male officers, view photos of her and her daughters without their headscarves as required in public by their religious beliefs. During the second search, which was of her daughter’s phone, Alasaad alleges, and Defendants have not disputed, that a CBP officer mentioned a photograph that had been on Alasaad’s phone during her earlier search but was not present in the second search.

[Plaintiff Zainab] Merchant is the founder and editor of a media website and has had her phones searched multiple times despite her concerns about officers seeing pictures of her without her headscarf on the phones and, on one occasion, her declining to give consent to search her phone since it contained attorney-client communications. Merchant observed a CBP officer viewing communications between her and her lawyer. [Jeremie] Dupin’s phone contained information from his work as a journalist, while [Sidd] Bikkannavar’s phone was a work phone officially owned by NASA’s Jet Propulsion Laboratory, and containing information from his work there.

The government tried to get out of this lawsuit by claiming the plaintiffs couldn’t show they had suffered harm or would continue to suffer harm if these agencies weren’t prevented from performing suspicionless searches. The court says it really can’t take the government’s word for this because the government continued to search the plaintiffs’ devices after this litigation commenced.

That such search of electronic devices continues for Plaintiffs, even in the midst of their ongoing legal challenges to same, serves as further, undisputed indication of the sufficient likelihood that, unremedied, such alleged harm will continue in the future, particularly given the Plaintiffs’ future plans for international travel.

The court agrees the government has a compelling interest to secure our borders. That’s why there’s no warrant requirement for device searches, despite the Riley decision. But, while the expectation of privacy may be reduced near the nation’s borders, it doesn’t disappear completely.

Agencies that patrol the borders are there to prevent illegal immigration and the transport of contraband into the country. That’s where the line is drawn by this federal court: if the government wants to search someone’s device, it needs to show it will find that contraband on the searched device. Searching for evidence of criminal activity simply isn’t allowed — not without a warrant.

Undisputedly, interdiction of inadmissible persons and goods are legitimate governmental interests at the border. Plaintiffs do not dispute that CBP and ICE officers have the unenviable task of screening “[o]ver one million travelers per day [who] go through U.S. ports of entry,” and although they have some information about travelers (particularly those traveling by air and otherwise through agency databases), they have little time to process it. Even so, the record that recites “searches of electronic devices at the border have successfully uncovered threats to national security, information pertaining to terrorism, illegal activities, contraband, and the inadmissibility of people and things,” without explanation of the frequency, nature of same or the manner of the discovery of same, is not a strong counterweight to the intrusion on personal privacy evidenced by such searches.

The court quotes from Riley to drive home the point about the privacy expectations of today’s laptops, tablets, and cellphones — all of which contain far more than the contents of a car trunk or luggage.

Defendants… point to the broad latitude border officials have to search physical items, but comparisons between searches for digital evidence or contraband and searches of other physical items or travelers themselves are inapposite. Riley recognized as much in responding to the government’s argument that officers could search a cell phone if there were a sufficiently similar non-digital analogue that officers could have searched by noting that “the fact that a search in the pre-digital era could have turned up a photograph or two in a wallet does not justify a search of thousands of photos in a digital gallery. The fact that someone could have tucked a paper bank statement in a pocket does not justify a search of every bank statement from the last five years.

[…]

Unlike a vehicle, vessel or even a home at the border, see 19 U.S.C. §§ 482, 1582, 1595(a)(2) (regarding inspections of vessels and homes), “the data stored on a cell phone is distinguished from physical records by quantity alone, [but] certain types of data are also qualitatively different.” It can “reveal an individual’s private interests or concerns” as evidenced by internet search and browsing history, “reveal where a person has been” through historic location information, and reveal which files a person created, accessed and when he or she did so through metadata. The potential level of intrusion from a search of a person’s electronic devices simply has no easy comparison to non-digital searches.

The court says any search of a device beyond “a brief look reserved to determining whether the device is owned by the person carrying it across the border” requires reasonable suspicion. It does not give a free pass to “basic” searches (i.e.,non-forensic searches). As the court notes, CBP and ICE’s definition of a “basic” search includes asking a person about their photos, emails, and contacts, asking one of the plaintiffs about their blog posts, and routinely removing the devices to perform “basic” device searches out of view of the plaintiffs. There’s nothing “basic” about these searches and the government will need reasonable suspicion to engage in them in the future.

The court’s ruling says ICE and CBP’s border device search policies are unconstitutional as presently defined and deployed. Reasonable suspicion is the new standard for device searches in this jurisdiction.

Filed Under: 4th amendment, border searches, cbp, constitution free zone, device searches, reasonable suspicion, suspicionless searches

Ninth Circuit Says Warrantless Device Searches At The Border Must Be Limited To Searches For Contraband

from the another-small-addition-to-the-Ninth's-rights-restoration-project dept

The Ninth Circuit has given back a bit more of the Fourth Amendment to American citizens. Again.

Supposedly, we’re so very much in need of national security, hardly anyone is allowed to avail themselves of their surely misnamed “rights” within 100 miles of our borders. This includes things like international airports as well, so the “Constitution-free zone” swallows up a large portion of our nation’s population

In 2013, the Ninth Circuit Court of Appeals ruled the Fourth Amendment still applies at the border, despite the US government’s protestations. The government can still get away with suspicionless searches at the border, but they have to be cursory, not exploratory. That case — US v. Cotterman — resulted in a finding that deeper searches of electronic device, like Cotterman’s laptop, needed reasonable suspicion. (The court also helpfully noted that the existence of password-protected files is not enough to meet that bar.)

Given the vast amount of information travelers carry on them at all times in their multiple electronic devices, it seems like this reasonable suspicion standard should be the minimum expected. We’re not quite up to a warrant requirement, but we’re getting closer. This recent decision [PDF] by the Appeals Court relies on its Cotterman precedent to find the same standard applies to cellphones — and clarifies what exactly that standard is.

In this case, a man arrested at a border crossing for trafficking drugs challenged the evidence found on his phone. After Border Patrol agents found cocaine concealed in a spare tire underneath his truck, the agents decided to search his phone. The man, Miguel Cano, claimed he was crossing the border visit his family in Los Angeles. (Cano is a US citizen who recently moved to Tijuana, Mexico.)

Cano claimed he knew nothing about the drugs stashed in the back of his vehicle. The agents decided to take a deep dive into his phone using Cellebrite software, which pulled text messages, contacts, call logs, and application data from Cano’s phone. This was apparently done because the cursory search — the one still fully protected by the border exception — failed to turn up anything interesting to the Border Patrol officers.

This is a search too far, the court says. Referring to its 2013 decision on device searches, the Appeals Court fills in some blanks from its previous ruling to give the government explicit rules on suspicionless device searches.

Applying United States v. Cotterman, 709 F.3d 952 (9th Cir. 2013) (en banc), we conclude that manual cell phone searches may be conducted by border officials without reasonable suspicion but that forensic cell phone searches require reasonable suspicion. We clarify Cotterman by holding that “reasonable suspicion” in this context means that officials must reasonably suspect that the cell phone contains digital contraband. We further conclude that cell phone searches at the border, whether manual or forensic, must be limited in scope to a search for digital contraband.

In this case, the agents may have felt the phone contained evidence of drug smuggling. But if that’s what they felt, they needed to get a warrant. If they want to perform forensic searches of phones without a warrant, they need to be able to show they believe the device itself contains contraband. In a case where the contraband is 30 kg of cocaine stashed in a spare tire, the likelihood of finding more drugs by scraping a phone for data is zero.

The court notes that the government can still perform forensic device searches without a warrant because some data is contraband, like child porn. A cursory view of the phone’s contents is sort of like looking into a suitcase. Anything deeper than that, though, needs to be justified by reasonable suspicion. If it wants to search for evidence only, it looks like the government will probably need a warrant. The court does not enact a warrant requirement, however. It defers to the government’s long-running insistence that border security trumps the Fourth Amendment.

But the court does head off one of the government’s worst arguments: that it should be allowed to search all devices for evidence of contraband, rather than be limited solely to contraband.

Does the proper scope of a border search include the power to search for evidence of contraband that is not present at the border? Or, put differently, can border agents conduct a warrantless search for evidence of past or future border-related crimes? We think that the answer must be “no.”

This should head off a few Border Patrol fishing expeditions, if and when this decision finally trickles down to California border crossings. As the court points out, finding otherwise would allow the border search exception to bypass the Ninth’s earlier decision on device searches, as well as the additional constraints imposed by the Supreme Court’s Riley ruling.

And the Border Patrol officers can’t salvage this search with the good faith exception. The government’s search powers were limited by the Appeals Court’s 2013 decision. That the government chose to believe that ruling only applied to laptops is on the government.

The government points to Cotterman as support for the good faith of the officials. We fail to see how border officials could believe that Cotterman was “binding appellate precedent” authorizing their search. Although we have concluded that Cotterman is still good law after Riley, the officials could not rely on Cotterman to justify a search for evidence; Cotterman was a search for contraband that the government has a right to seize at the border. Here, the officials’ search was objectively tied only to proving their case against Cano and finding evidence of future crimes. Searching for evidence and searching for contraband are not the same thing.

With that, the evidence pulled from Cano’s phone is gone, along with his conviction. And there’s a bit more Fourth to go around in the far western reaches of this nation — home to plenty of border crossings.

Filed Under: 4th amendment, 9th circuit, border searches, contraband

Canadian Border Agents Also Routinely Demanding Passwords From Travelers And Searching Their Devices

from the slightly-more-apologetic-rights-violations dept

In sad but unsurprising news, Canada is no better than the US when it comes to ignoring its citizens’ rights at the border. The Canada Border Security Agency (CBSA) has also been given the green light to perform invasive, warrantless searches of people’s devices at the border. And, like its US counterpart, it seems to be using this power frequently.

The CBSA said that between November 2017 and March 2019, 19,515 travellers had their digital devices examined, which represents 0.015 per cent of all cross-border travellers during that period.

Whether or not these numbers are on the rise is still a mystery. The CBSA only began tracking this statistic in late 2017 after Canada’s privacy commissioner opened an investigation into this practice. Concerns were raised about the CBSA’s searches, which involved cloning devices for later examination and seizing devices if travelers refused to hand over passwords.

Unfortunately for the CBSA, it searched the wrong person’s device. A legal challenge is being raised by someone well-equipped to raise legal challenges, as CBC News reports.

“The policy’s outrageous,” said Toronto business lawyer, Nick Wright. “I think that it’s a breach of our constitutional rights.”

His thoughts follow a personal experience. After landing at Toronto’s Pearson Airport on April 10, he said the Canada Border Services Agency (CBSA) flagged him for an additional inspection — for no stated reason.

Wright had just returned from a four-month trip to Guatemala and Colombia where he studied Spanish and worked remotely. He took no issue when a border services officer searched his bags, but drew the line when the officer demanded his passwords to also search his phone and laptop.

Wright refused, telling the officer both devices contained confidential information protected by solicitor-client privilege.

The end result was CBSA agents confiscating Wright’s phone and laptop with the assurance they would be sent to a government lab in order to have their password protection cracked. Replacing them cost Wright $3,000.

Wright claims this is a violation of Canada’s charter of rights. Canadian courts, like those in the US, have decided no involuntary sacrifice of rights is too great when national security is on the line. The CBSA, for its part, has greeted the tech future by pretending it’s still 1975, and that searching a phone is no different than searching a briefcase or the trunk of a car.

For all of that, this is probably the right time to challenge this custom of customs officials. The nation’s top court has already drawn a distinction between briefcases and cellphones, saying the latter contains vast amounts of information that “touches a person’s biological core.” And at least one provincial court has declared Canadians’ rights are not null and void simply because they’re at a border crossing.

The CBSA’s statement to CBC News says these suspicionless searches that can result in the indefinite seizure of citizens’ devices are “reasonable and necessary” to keep Canada secure. But they seem to be neither. There’s nothing “reasonable” about invasive searches completely divorced from articulable suspicion. That’s the very definition of “unreasonable.” And as for necessity, all the CBSA has to offer is that 38% of its 19,000+ device searches “uncovered evidence of customs-related offences.” This means most searches don’t recover any evidence of anything and that things like undeclared goods are somehow threatening to the country’s security.

It’s time for border agencies to stop pretending the only way to secure a nation is to discard its citizens’ rights. And it’s time for courts to stop deferring to national security mantras and stick up for the rights they — and the rest of the government — are supposed to be protecting.

Filed Under: border searches, canada, device searches, electronics, passwords, privacy

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.

Filed Under: 11th circuit, 4th amendment, border searches, device searches, privacy, reasonable suspicion