eDiscovery Daily Blog

• May 21, 2018

Don’t let my cute title confuse you.  In this case, the Fourth Circuit issued an interesting decision regarding whether a warrant is required to search an individual’s cell phone.

According to Sharon Nelson’s terrific Ride the Lightning blog (4th Circuit Says Border Search of Phones Requires Individualized Suspicion (But Not a Warrant)), on May 9th, the Fourth Circuit Court of Appeals issued a decision in US v. Kolsuz, ruling 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.  But not a warrant.

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.  That certainly seems like reasonable suspicion to me.

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.  Tom O’Connor discussed the Border Entry exception as part of his Understanding eDiscovery in Criminal Cases on our blog here.

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 (which Tom O’Connor also discussed on our blog here) 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 Fourth 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 Fourth 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.  In her blog, Sharon notes that she “remain(s) on their side.”  We can agree to disagree on this one… :o)

So, what do you think?  Should cell phone and other electronic device searches at the border require a warrant?  Please share any comments you might have or if you’d like to know more about a particular topic.

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