Monday, March 20, 2017

Your Cell Phone and Computer at the Border Redux

If you decided to send some of your hard earned dollars to the American Civil Liberties Union in the wake of Donald Trump's election, they are putting your money to good use.

A month ago, I looked at the Custom and Border Patrol's assertion of a right to search our phones and computers at the border, even without individualized suspicion. I suggested that in light of U.S. v. Riley (2014), wherein a unanimous Supreme Court held that the police must have probable cause and a warrant in order to search a cell phone incident to an arrest, it seems likely that earlier cases, e.g. U.S. v. Cotterman (9th Circuit, 2013) would be overruled when the issue reaches the Supreme Court.

Today the American Civil Liberties Union filed a friend of the court brief in U.S .v. Kolsuz, pending in the Fourth Circuit Court of Appeals (located in Richmond, VA). The brief asks the court to decide the issue whether Riley applies to border searches. The full brief can be found HERE.

Summary of ACLU Argument in Kolsuz v. U.S.

This case presents an important question about the extent of Fourth Amendment privacy rights in the digital age, where the use of mobile devices is widespread. The government’s assertion of authority to search such devices without any individualized suspicion when an individual is crossing the border—whether entering or leaving the United States—creates an end-run around Fourth Amendment protections that would otherwise apply to the voluminous and intimate information contained in those devices, and is not justified by the rationale permitting routine border searches.

Hundreds of millions of people cross the United States’ borders every year for school, business, pleasure, and family obligations. Large numbers of those travelers carry laptops, smartphones, and other portable electronic devices that, despite their small size, have “immense storage capacity.” Riley v. California, 134 S. Ct. 2473, 2489 (2014) The information on these devices can be deeply sensitive and private, including personal correspondence, notes and journal entries, family photos, medical records, lists of associates and contacts, proprietary or privileged business information, financial records, and more. This information can be stored on the device itself, or contained in cloud-based accounts that are accessible from the device. The Department of Homeland Security itself recognizes that border searches of electronic devices raise “unique privacy concerns,” unlike those inherent in searches of other luggage. Nevertheless, the government claims the right to seize these devices at the border, detain them, and invasively search them with no warrant or individualized suspicion whatsoever.

Given the significant privacy interests at stake and the inconsistent results reached by district courts on this issue, this Court should take the opportunity to clarify the Fourth Amendment standards governing such searches. This Court should hold that searches of portable electronic devices may not be conducted without a warrant or, at an absolute minimum, a determination of probable cause.

This Court should so hold even if it determines that the government had the requisite level of suspicion in this particular case. In light of evidence that the number of device searches at the border is increasing, the failure to articulate the appropriate standard may result in a “significant diminution of privacy” for travelers. See Riley, 134 S. 2493.
Stay tuned.

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