Should You Have Any 4th Amendment Rights In An Airport?

from the seems-kind-of-important dept

For many years, we’ve written about the craziness of the so-called “border search exception” to the 4th Amendment, in which the US government has insisted that the 4th Amendment doesn’t apply at the border, and thus it’s allowed to search people at the border. The initial reasoning was — more or less — that at the border, you’re not yet in the country, and thus the 4th Amendment doesn’t apply yet. But that’s expanded over time — especially in the digital age. Perhaps, back when people just had clothes/books/whatever in their luggage, you could understand the rationale for allowing a search, but today, when people carry laptops and handheld electronic devices that basically store their whole lives, the situation is a lot scarier. Unfortunately, (with just a few small exceptions) the courts have simply taken the historical ability to search luggage at the border and expanded it to cover electronic devices. Then, things got even more ridiculous, when Homeland Security decided that anywhere that’s within 100 miles of the border could be “close enough” to count as a “border search,” making the “border search exception” apply. That’s… messed up.

There’s now a case in the 4th Circuit that shows how this is expanding even further, and on Monday we joined with the Cause of Action Institute and the Committee for Justice to file an amicus brief in the case of Hamza Kolsuz (the ACLU has also filed an amicus brief). Kolsuz had his phone searched under a “border search exception” — but here’s the thing: He was in the process of leaving the country, not entering it. A regular bag search turned up handgun parts in his checked luggage, for which he was arrested. After that, his iPhone was seized and searched without a warrant. Remember, just a few years ago, the Supreme Court ruled that you need a warrant to search a mobile phone in the Riley case. But here there was none.

Law enforcement tried to get around this by claiming that since Kolsuz was at the airport, the search of his phone should count as a border search exception. But that’s crazy. Unfortunately, the district court accepted this reasoning — and now the case is on appeal. We signed onto this amicus brief for a variety of reasons, but a big one is that, as journalists, protecting sources and documents is important. We shouldn’t be subject to warrantless searches of our work every time we just happen to be in an airport. As the brief notes:

The District Court erred in denying Mr. Kolsuz’s Motion to Suppress and this Court should reverse and remand for a new trial. First, while the border search doctrine constitutes a narrow exception to the otherwise unequivocal Fourth Amendment requirement that the government obtain a warrant to conduct a search, the governmental interests that justify this narrow border search exception were not in play when the Defendant’s smartphone was searched incident to his arrest, and this exception therefore cannot be used to justify the search here. The fact that Mr. Kolsuz was arrested and his phone seized at an airport–the equivalent of a border–does not change this case from one that fits squarely within Riley v. California… to one that is suddenly part of a narrow exception of cases justified by the sovereign’s customs enforcement rules.

The Court should see this search for what it was: a month-long, detailed, forensic search to gather evidence against Mr. Kolsuz for use in a trial on the very charges for which he was arrested. Since the search here was not actually a border search, the border search exception cannot save it.

Second, the United States essentially seeks a mechanical application of a Fourth Amendment exception even where the interests that justify the exception were not implicated in this case. The dangers of such a mechanical application are readily apparent. People traveling into and out of the United States routinely cross with smartphones or computers that contain the equivalent of “every piece of mail… every picture… [and] every book” a person has…. These individuals include journalists, lawyers, and business travelers with confidential information typically safeguarded under American jurisprudence. Nevertheless, customs agents purport to have unfettered access to the contents of electronic devices carried by such individuals, without any reasonable suspicion or probable cause of a crime, simply by the fact that the individual wishes to leave or enter the United States. This is not the application of the border search exception that the Supreme Court had in mind when it outlined its narrow purview.

Of course, many of us still find the very idea of a “border search exception” to be nonsensical in the first place. But if it’s there, the idea that it could be abused in this manner is even more problematic and concerning. Hopefully the 4th Circuit corrects this injustice. We’re proud to sign onto this brief, and hope the court listens.

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Comments on “Should You Have Any 4th Amendment Rights In An Airport?”

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Anonymous Coward says:

If I am not in the country for the purpose of my rights, then logically I must also be outside of the country for purposes of your authority to search. Or perhaps if we are in a no rights zone, then you also don’t have a right to keep breathing. We really shouldn’t be encouraging lawlessness like this.

orbitalinsertion (profile) says:

Re: Re:

The other funny thing is that borders seem to be wherever they say they are. Reagan said territorial waters extend 12 nautical miles from the shore. The exclusive zone extends 200 miles from shore, which seems to be appropriately related to Customs in particular.

So perhaps they should ring the country at one or both of these two distances with their respective agents and let them tread water until they can find someone to search.

Bergman (profile) says:

Re: Re:

It is a fact of federal law (statutory) that if a US citizen violates US law while outside of US jurisdiction, they can be prosecuted for that violation when they return to US jurisdiction — even if what they did was not illegal where they did it.

The US Constitution does not have territorial limits built into it, those have been created by the courts. It is a violation of federal law (Title 18, Chapter 13, Sections 241-242) to violate the rights protected by the Constitution (as well as statutes) under color of law. Doing so alone and unarmed is punishable by a year in federal prison. Doing so with two or more people or with the threat of a dangerous weapon involved increases the punishment to ten years in prison — a felony by the standard both state and federal governments use to determine such things.

Federal courts and many state courts have ruled that mere possession of a dangerous weapon while committing a crime — even if the victim never knows the criminal had the weapon — adds the with-a-weapon enhancement automatically.

Tl;dr: Every time an agent of the US government acts like the Constitution doesn’t exist at the border, they became a felon — but the government didn’t see any need to prosecute itself, and ignored the crime.

Anonymous Coward says:

A matter of perspective

“the courts have simply taken the historical ability to search luggage at the border and expanded it to cover electronic devices.”

As the law sees it it isn’t an expansion at all. Just because something is stored in a digital format shouldn’t automatically give it more protection that something printed on paper.

Cdaragorn (profile) says:

Re: A matter of perspective

Actually the law does see it as an expansion. The point wasn’t about how the items were being stored at all. if you read a little more than just that sentence you’d see that it was about HOW MUCH is being stored.

When you can carry your entire home and 3 cars in a handbag, then maybe you’ll have a point. For now, the exception only made sense because of the limited amount of stuff that was being searched.

thewix (profile) says:

Re: Re: Re: A matter of perspective

Riley v California, it’s right there in the article. The Supreme Court unanimously held that a search of the contents of a cell phone incident to arrest requires a warrant, in part because phones usually contain information far beyond the papers and effects a person may happen to be carrying.

Whether that applies to searches at the border may not be settled law, but if this makes it to the Supremes, I know which way I’d bet.

Anonymous Coward says:

Searching books

Perhaps, back when people just had clothes/books/whatever in their luggage, you could understand the rationale for allowing a search

We should never have been looking at the text of books or papers. The only search that should be allowed is to determine that it’s actually a book, not a weapon or smuggling-container disguised as one. The same for electronics: there’s no excuse to be reading the data.

TasMot (profile) says:

Where exactly is that Border?

So, there is a 100 mile border going inland. However; the US government also claims that you have to be more than 3 miles offshore before gambling because otherwise it’s still in the country (see Wow, that is one really flexible border definition.

Since I live near the coast of the Chesapeake Bay, am I in the country or not? Or am I in that nebulous 100 to 103 mile “Constitution Free” zone (that is still governed by US law but not the constitution)?

How can someone that is covered by US law that is granted by the power of the constitution not be covered by the constitution when it comes to the non-LEO rights?

Anonymous Coward says:

If I were a betting person, I’d put my money on the courts siding with the government again. The reason being it doesn’t matter if you’re entering or leaving the country, when you’re at a security checkpoint the other side of it is legally an international zone. The checkpoint is a border search and therefore covered under the exception. All baggage inside an airport terminal is subject to stop-and-search protocol regardless if you’re coming or going.

Anonymous Coward says:

Re: Re: Re:

Irrelevant. He was at the airport at the time and the airport terminal itself is considered secured territory and baggage, including electronic devices, are subject to search. You can argue about it all day, but the courts are going to side with the government that this was just another border search, since the actual crime was committed at the airport. It’s not as ambiguous as the article author suggests.

It SHOULD be, we should have never allowed search and seizure of documents and by extension electronic data at the border to begin with. There’s no reasonable argument for security or safety of passengers or the country as a whole for doing so without cause (and a warrant).

But that genie is already out of the bottle, thanks to the courts, so no, it’s no stretch at all of the current practices.

Roger Strong (profile) says:

Re: Re: Re:5 Re:

I provided a link. Here it is again. The checkpoints had become routine.

Granted, it was only causing problems for foreign students. But that was only after stopping everyone and checking to see if they were non-citizens.

There have also been stories posted to Techdirt about people stopped near the southern border. Not while crossing; just driving on the highway NEAR the border. With the border patrol objecting to being filmed. Those stops are also routine.

Anonymous Coward says:

Re: Response to: Anonymous Coward on Mar 22nd, 2017 @ 9:59am

I think you hut it exactly.

Presenting yourself at tge border going in either direction is a question of security and national interests.

Put it another way. If they can search his bag and they can give him tge rubber glove treatment tgen there is no logical reason why the phone should be magically out if bounds.

Digitari says:

So, which "rights" are in effect?

so the 4th can be disregarded but the right to immigrate isn’t? How can a Federal Judge claim a violation if it’s done within 100 miles of the border or at a point of entry (ie: Airport) Seems like the right hand has no clue what the left hand is doing.
so one is ok but the other is not, Both should be the same, you can do one or both; Not in conflict with each other.

Both are “rights,” the odd part is the Fourth is as written, immigration, no so much.

Anonymous Coward says:

Re: So, which "rights" are in effect?

It’s largely become “due process” is what the courts and legislature says it is rather than what the Constitution unambiguously has already stated. Civil forfeiture, warantless wiretaps, wholesale surveillance, pretexts for searching electronic devices, third party doctrines, anything the government and its agents can come up with to erode civil rights all in the name of “law and order” and “safety”. And we as citizens as a whole are too apathetic to force a return to sanity.

tom (profile) says:

Still trying to understand why having gun parts in checked baggage justified a search in the first place. You are allowed to carry declared fully operational firearms in checked baggage provided they are in a locked container. Sounds like the govt. was on shaky ground for the first search and used the ‘border exception’ excuse to allow the search.

Anonymous Coward says:

just suck it up guys! we’ve allowed the USA to become a worse ‘Police State’ than any of the countries that the USA criticizes as being ‘Police States’ and we made it worse when we elected trump!! look at what he has been doing to our freedom and privacy in the few weeks he’s been in office and what he has done to show the rest of the world what he and his appointed heads of security etc are actually like! do you think we have any credibility left with any other nation? every person in the world, including all USA citizens whether at home or abroad are tared with the same brushes as terrorists from the likes of Iran and N.Korea! how can we ever condemn anywhere else again, in all good conscience, when even we are not trusted??

Anonymous Coward says:

Re: Re: Re: Re:

So lets just invite more of them. Like the 17 year old in Maryland that raped a 14 year old girl in the boys bathroom recently?

Sure, it doesn’t happen often, but the fact is, if that illegal wasn’t in the country, that 14 year old girl wouldn’t have been raped (unless of course you think some other US citizen would have stepped up and raped her.

So why do you support children rapists?

Anonymous Coward says:

Re: Re: Re:2 Re:

Ah, blaming an entire group for the crimes of individuals. Sure, we can do that, lets just fire and jail all members of the police for killing unarmed innocents or get rid of all politicians for obvious corruption.

Sure, those things don’t happen often, but the fact is, if those people were not allowed in the country, the crimes committed by them would not happen.

Anonymous Coward says:

I can understand why you would do a search at an airport. It is technically a border in that you do enter our airspace at some point and it’s not like you have to land at the border. We’re not going to do mid-flight searches of the cargo hold at 30,000 feet.

If, for intance, we can’t inspect containers at an airport someone could bring in a plant, animal, disease, etc., that decimates the eco-system or kills people.

But, the damn phones. They contain too much information and there’s almost no protection of the information in them at any meaningful level past encryption. We’ve approached privacy in this country completely backwards. We should have put laws in place that everything is protected, period. Instead, we chose the alternative, basically anything you can get your hands on is yours to do with as you please.

Anonymous Coward says:

Re: Re:

We had one:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Chuck says:

Abolish the TSA

This is just yet another reason to abolish the TSA entirely. Take people who are literally less well-trained than Mall Rent-a-cops and tell them they’re the only thing that stands between their friends and families and the next 9/11, and you’re bound to see some people bending and breaking the rules in the name of Security.

When they don’t even perform as well as the previous security (this is fact – Red Team exercises manage to get past their own security nearly twice as often as they used to bypass pre-TSA security) and literally nobody likes them, it’s a wonder they’ve managed to survive this long.

But, in truth, only corporate pressure on Congress is going to finally drive a stake in the TSA. So I’m doing my part: prior to the TSA, I took about 25-30 commercial flights. I was 13 when 9/11 happened, and I’m 30 now. I’ve flown ONCE since then, and the experience was so bad, I’ve vowed never to fly again until the TSA is abolished.

If more people did the same, the airline industry would be forced to act on our behalf and lobby congress to abolish the TSA, too. With that kind of pressure, this could actually happen.

And…given than I live in Alabama and I want to visit Seattle for the third time before I’m 40, it’d be really nice if you could all join in. Thanks 🙂

sorrykb (profile) says:

Re: Re:

So when the courts wouldn’t allow terrorists from coming in, that was good as they are always right, but when courts want to search an iPhone, that is bad and they are always wrong?

That’s the thing, though. It wasn’t a court that authorized the search. Had border agents actually gotten the courts involved by seeking a warrant as required by the 4th Amendment, we wouldn’t be having this conversation.

OA (profile) says:

If one were to analyze the behavior of “security enthusiasts”, what motives could be found?

Assuming complete sincerity, it seems they want 100% perfect security which is impossible. If it were possible the side effects would be undesirable.

However, the attempts at security seem less than competent. It could be that the intent is just to collect the power to be able to do these things for some later purposes.

A push for “extreme security” might be preferable to fixing or addressing the conditions that create the need for this security. This is a basic redirection: commit acts that have some negative consequence (often predictable) – instead of stopping the acts or dealing with the consequence, translate the blow-back into a form someone else suffers for.

It’s probably a combination of all three. None of three motives or any combination has any real chance of any positive ultimate outcome, for the populace or the “security enthusiasts”.


Ryunosuke (profile) says:

here is a question for all Congressmen, and lawyers, and Judges.

What exactly is the point of a national border, if we are not longer recognizing our own border in regards to constitutional laws. Expanding on that line of thought, why are we deporting people from Mexico if we, again, no longer recognize the borders of the United States? If there is a 100 mile exception to Constitutional law, and presumably at airports now, then by proxy, any person that is undocumented that is within 100 miles of a “border” or that is in an airport, thus cannot be legally deported.

One shouldn’t read a law one way in one situation, and another way in another situation.

Anonymous Coward says:

just too damn hard for govt to follow the law

everyoe is talking about the constitution as if it wasn’t the law. the constitution is the law that supercedes all others. it is mental manipulation by the government that has led people to believe that the constitution is valueless and that people don’t actally have the rights detailed therein.

the 4th amendment is very clear, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

a phone is “an effect”, no specific warrant, no search.

as long as people don’t resist, the tyrany will continue.

The Wanderer (profile) says:

Re: just too damn hard for govt to follow the law

The argument is that it’s obviously reasonable for border agents to search baggage, et cetera, that is crossing the border – and thus that, since this is not an “unreasonable” search, the Fourth Amendment does not prohibit it.

There’s a widespread idea that the Fourth Amendment contains the underlying assumption “any search which is not authorized by a duly-issued warrant is unreasonable”, but the text of the amendment does not actually state that, and the courts have not universally held to that as a hard requirement.

Ninja (profile) says:

The real question is: what immediate threat to the flight an electronic device content may pose? One that immediately comes to mind is the ‘terrorist’ using it to activate a bomb in the cargo hold. There are two ways to prevent that. Either you make the cargo hold a Faraday Cage or you screen the bags properly. And bags don’t get cancer and stuff so you can xray or whatever the hell out of them.

Examining the digital stuff of passengers does exactly zero to improve aircraft security.

Anonymous Coward says:

You have a right to overpriced, often bad food. You have a right to stand around in lines, waiting for screenings that have not actually stopped any incidents. You have a right to sit around waiting to get on your plane and being overcharged for the ability to either charge your phone or access wifi. You have a right to have your luggage rummaged through and stolen.

Seems like people have lots of rights in an airport.

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