Virginia court says border agents need suspicion to search cellphones

Lawrence Kim
May 11, 2018

A federal appeals court in Virginia has ruled that US border authorities can not search the cellphones of travelers without having some reason to believe a particular traveler has committed a crime.

While Casper described the law as unclear, she said the issue was not unlike a major privacy rights case the U.S. Supreme Court decided in 2014 in which it held police must obtain a warrant to search an arrested suspect's cellphone.

A federal judge on Thursday rejected the Trump administration's bid to dismiss a lawsuit challenging the federal government's growing practice of conducting warrantless searches on phones and laptops of Americans stopped at the border.

The officers had seized Kolsuz's phone after they found firearms parts that required an export license in his checked luggage.

The forensic search of Kolsuz's phone produced information that included personal contact lists, emails, messenger conversations, photographs, videos, calendar, web browsing history, call logs and Global Positioning System tracking history. The suit was brought by the Electronic Frontier Foundation (EFF), the American Civil Liberties Union (ACLU), and the ACLU's MA affiliate on behalf of 11 plaintiffs: 10 USA citizens and one permanent resident whose devices had been searched when they returned to the US from overseas.

But a so-called border search exception allows federal authorities to conduct searches within 100 miles (160 km) of a USA border without a warrant. The Associated Press and the Guardian have coverage.

The ruling in USA 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.

Although affirming the denial of the motion, the court found that "forensic searches of digital phones must be treated as a non-routine border search, requiring some form of individualized suspicion".

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. The case was United States v. Cotterman. 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.

Other reports by Click Lancashire

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