Fourth Circuit Rules That Suspicionless Forensic Searches of Electronic Devices at the Border Are Unconstitutional

["Dave Farber" <farber () gmail com>]

Begin forwarded message:

> From: Dewayne Hendricks <dewayne () warpspeed com>
> Date: May 10, 2018 at 11:28:38 AM EDT
> To: Multiple recipients of Dewayne-Net <dewayne-net () warpspeed com>
> Subject: [Dewayne-Net] Fourth Circuit Rules That Suspicionless Forensic Searches of Electronic Devices at the Border 
> Are Unconstitutional
> Reply-To: dewayne-net () warpspeed com
>
> [Note:  This item comes from friend David Rosenthal.  DLH]
>
> Fourth Circuit Rules That Suspicionless Forensic Searches of Electronic Devices at the Border Are Unconstitutional
> By SOPHIA COPE
> May 9 2018
> <https://www.eff.org/deeplinks/2018/05/fourth-circuit-rules-suspicionless-forensic-searches-electronic-devices-border-are>
>
> In a victory for privacy rights at the border, the U.S. Court of Appeals for the Fourth Circuit today ruled that 
> forensic searches of electronic devices carried out by border agents without any suspicion that the traveler has 
> committed a crime violate the U.S. Constitution.
>
> The ruling in U.S. v. Kolsuz is the first federal appellate case after the Supreme Court’s seminal decision in Riley 
> v. California (2014) to hold that certain border device searches require individualized suspicion that the traveler 
> is involved in criminal wrongdoing. Two other federal appellate opinions this year—from the Fifth Circuit and 
> Eleventh Circuit—included strong analyses by judges who similarly questioned suspicionless border device searches.
>
> EFF filed an amicus brief in Kolsuz arguing that the Supreme Court’s decision in Riley supports the conclusion that 
> border agents need a probable cause warrant before searching electronic devices—whether manually or with forensic 
> software—because of the unprecedented and significant privacy interests travelers have in their digital data. In 
> Riley, a case that involved manual searches, the Supreme Court followed similar reasoning and held that police must 
> obtain a warrant to search the cell phone of an arrestee.
>
> As Hamza Kolsuz prepared to board a flight to Turkey at Washington Dulles International Airport, border agents 
> searched his luggage and found that he was attempting to export firearms parts without a U.S. license. Border agents 
> then confiscated his iPhone and manually searched it. They subsequently arrested Kolsuz and conducted a second search 
> of his iPhone, this time using a forensic tool by the company Cellebrite. This forensic search produced “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,” according to the court’s opinion.
>
> The Fourth Circuit’s ruling applies only to forensic, not manual, searches of electronic devices at the border 
> because Kolsuz only challenged the use of the evidence obtained from the forensic search of his cell phone is his 
> prosecution. “We have no occasion here to consider whether Riley calls into question the permissibility of 
> suspicionless manual searches of digital devices at the border,” the court said.
>
> While we're heartened that the Fourth Circuit left open the possibility that manual searches may also require 
> individualized suspicion, we disagree with the court’s unsupported statement that “the distinction between manual and 
> forensic searches is a perfectly manageable one,” given that manual searches of electronic devices enable government 
> agents to access virtually the same personal information as forensic searches. 
>
> EFF has long argued that border agents need a warrant from a judge, based on probable cause of criminality, to 
> conduct electronic device searches of any kind. The Supreme Court’s pre-Riley case law, however, permits warrantless 
> and suspicionless “routine” searches of items like luggage that travelers carry across the border, a rule known as 
> the border search exception to the Fourth Amendment’s warrant requirement. Based on these pre-Riley cases, the 
> government claims it has the power to search and confiscate travelers’ cell phones, tablets, and laptops at airports 
> and border crossings for no reason or any reason, and without judicial oversight.
>
> [snip]
>
> Dewayne-Net RSS Feed: http://dewaynenet.wordpress.com/feed/
> Twitter: https://twitter.com/wa8dzp



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