Ride the Lightning

4th Circuit Says Border Search of Phones Requires Individualized Suspicion (But Not a Warrant)

May 14, 2018

On May 9th, the Fourth Circuit Court of Appeals issued a decision in US v. Kolsuz, a criminal appeal raising the question of how the Fourth Amendment applies to searches of electronic devices at the border. The Court ruled that in light of the immense privacy concerns, forensic searches of electronic devices seized at the border must be justified by individualized suspicion, or some reason to believe that a particular traveler had committed a crime.

The appeals court said border patrol officers had reasonable suspicion to conduct a forensic search of Hamza Kolsuz's cellphone, and they were entitled to rely on that standard based on case law that suggested it was, at most, all that was required. The officers had seized Kolsuz's phone after they found firearms parts that required an export license in his checked luggage. It was the third time weapons parts were found in his luggage. Even I have a hard time arguing with that one.

The forensic search of Kolsuz's phone produced information that included personal contact lists, e-mails, messenger conversations, photographs, videos, calendar, web browsing history, call logs and GPS tracking history. He was sentenced to 30 months in prison after a conviction for violating the Arms Export Control Act and conspiracy.

The federal government had contended that searches of electronic devices require no warrant or individualized suspicion under an exception that allows searches of suitcases at the border.

The decision is the first federal appellate ruling to require individualized suspicion in a border search of a cellphone since the U.S. Supreme Court ruled in Riley v. California in 2014 that police generally can't search the contents of a cellphone seized during an arrest, unless they get a warrant, according to the Electronic Frontier Foundation (EFF).

Under Riley's recognition of the extensive information stored on cellphones, the 4th Circuit said, the forensic search of Kolsuz's phone should be considered a nonroutine border search that requires some measure of individualized suspicion.

The EFF and the ACLU had filed amicus briefs urging the 4th Circuit to go further and hold that probable cause is needed before a search of electronic devices, whether it's a manual search or one using forensic software.

After arguments in the case, the Department of Homeland Security adopted a policy that treats forensic searches of digital devices as nonroutine border searches requiring reasonable suspicion of activity that violates the customs laws or in cases raising national security concerns, according to the opinion.

The ACLU and the EFF have filed a separate lawsuit that challenges warrantless searches of electronic devices at the border. And I remain on their side.

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