Fifth Circuit Says Law Enforcement Doesn’t Need Warrants To Search Phones At The Border

Privacy

from the never-mind-the-precedent dept

In 2014, the Supreme Court made it clear: phone searches require warrants. While it did note the case involved a search “incident to an arrest,” the precedent was undeniable. If a phone search attached to an arrest requires a warrant, it would logically follow that any phone search by law enforcement — even those not subsequent to an arrest — requires a warrant.

Since then, multiple federal courts have come to the opposite conclusion in cases involving searches of phones at borders or international airports. According to these judges, the Riley decision simply doesn’t apply when border security is in play. And it doesn’t matter whether the searched device belongs to an American citizen or a resident of a foreign country.

The law shouldn’t be unsettled, but it is. There’s no consensus at the appellate level. Nor is there one at the lower levels. All we have is a lack of clarity to work with. One federal judge (Jed Rakoff) said warrants are needed for “some” border phone searches — specifically “forensic” searches in which the government makes itself a copy of all data on a person’s phone.

The Fourth Circuit Appeals Court also made a limited finding in favor of Riley’s warrant requirement, stating that border law enforcement officers must have at least articulable suspicion to engage in forensic searches. That’s still a long way from probable cause, but it’s more than the “nothing at all” standard CBP and Border Patrol officers have been held to.

The Seventh Circuit had a chance to set precedent in another border device search case, but instead chose to save the question for a later day, leaving the “because border security” rationale for warrantless searches undisturbed.

This indecision has led to a steady increase in border device searches, driven by the ubiquity of smartphones and no one at the judicial level willing to decisively tell border officers a warrant is needed.

Texas immigration lawyer Adam Malik has given the Fifth Circuit a chance to set precedent more aligned with the Supreme Court’s 2014 Riley decision. Unfortunately, the Fifth Circuit has decided a forensic search of Malik’s device (which was held by the CBP for three weeks) isn’t a violation of the Fourth Amendment. (via FourthAmendment.com)

Malik sued the DHS and CBP in early 2021, after his phone was seized, searched, and held by the CBP. One of Malik’s many concerns was the government’s warrantless access to privileged attorney-client information. This is what happened during the search Malik sued over.

In response to Mr. Malik’s assertion of privilege, Officer Sullivan informed Mr. Malik that DHS was seizing the iPhone and that the digital contents would be searched. Officer Sullivan did not disconnect the iPhone from the internet or the communications network. He failed to take action that would protect the iPhone from accessing the internet or a communications network. Officer Sullivan ordered Mr. Malik to leave the deferred inspection area without the iPhone while the iPhone still was connected to the internet and a communications network.

Neither Officer Sullivan nor any other employee of Defendants asked Mr. Malik to disable connectivity of the iPhone to the internet or to any network. Had Officer Sullivan or any employee of Defendants offered to permit Mr. Malik to place the iPhone in airplane mode upon or after seizure of the iPhone, Mr. Malik would have done so immediately.

On top of not preventing the phone from continuing to collect data and communications, the DHS held on to Malik’s phone for five months. According to this, from the Fifth Circuit’s decision [PDF], part of that time was given over to the government’s efforts to avoid accessing privileged information.

The phone’s passcode feature prevented the border officers from accessing the phone, and thus from searching it, so they sent it to a forensics lab. The lab bypassed the phone’s security features, extracted the phone’s data, and returned the phone and the data to DHS. All of that took about three months. DHS then used a “filter team” to screen the extracted data for any privileged materials. That took about two more months. Once the filter team had finished, they provided the border officers in Dallas with “two thumb drives . . . consisting of the data that the filter team determined [the officers] were authorized to search.” DHS then conducted a border search of that data, and DHS returned the phone to Malik on May 21, 2021.

What’s not explained here is what the DHS was searching for. That it has the power to engage in warrantless searches of devices doesn’t automatically create reasons for it to do so. Very little was explained to Malik, other than that the officers could do this and, therefore, they were going to do this. All of this happened despite Malik being a government-approved member of the CBP’s Global Entry Trusted Traveler Program, which should have seen him subjected to less scrutiny when crossing borders, rather than what he was actually subjected to.

Following some hard questions posed to the DHS by Senator Ron Wyden, Malik sought to obtain more information to use in his lawsuit against the agency.

Discovery closed on February 11, 2022. Malik moved to reopen discovery a few weeks later, citing a public letter that United States Senator Ron Wyden sent to DHS’s Inspector General. Among other things, the letter alleges that DHS conducted “bulk surveillance of Americans’ financial records” by collecting troves of “transaction data” from Western Union. While the letter asks DHS to investigate these allegations, it does not address individual border searches, phone records, decryption, or DHS’s data-retention policies. The district court denied Malik’s motion.

The court denied this motion. Then it decided in favor of the DHS, ruling it had not violated Malik’s rights with this search of his phone.

Unfortunately, the Fifth Circuit Appeals Court (which splits the US-Mexico border with the Ninth Circuit) agrees with the lower court. No rights violation here, not when border security is on the line.

Malik argues that we should extend Riley v. California to border searches. Yet, for “[routine] cell phone searches at the border, our sister circuits have uniformly held that Riley does not require either a warrant or reasonable suspicion.” We have held the same. Even for non-routine searches, our sister circuit “have differed only as to whether reasonable suspicion is required.” We are not aware of any circuit court that has extended Riley’s warrant requirement to the border.

“Ordinarily, we would expect a party encouraging us to adopt a new constitutional [theory] to convincingly distinguish adverse authorities” and “to discuss the contours of the doctrine [he] wishes us to adopt. Malik has not done any of that. He has not even attempted to argue that the search was anything other than routine. He also has not discussed or analyzed Riley at any length, nor has he addressed the fact that “[e]very circuit that has faced this question has agreed that Riley does not mandate a warrant requirement for border searches of electronic devices, whether basic or advanced.

Instead, Malik has asked us to “intervene” and hold “that a judicial warrant is required at this time for the search of an attorney’s confidential client files and communications at the border.” Malik’s request for our “intervention” is itself a tacit concession that our precedent does not currently require a warrant for cell-phone searches at the border. We express no view on how the border-search exception may develop or be clarified in future cases, but we do expressly decline to address it further here.

So, like the Seventh Circuit, the Fifth Circuit decides analyzing Riley in terms of border searches is a question for another day. And, by passing on this opportunity, it ensures the next time someone asks the same question, it will be able to refer to its previous punt to kick the constitutional can further down the road.

That being said, the lawsuit isn’t entirely dead. Malik also wants to ensure the DHS destroys all the data it pulled from his phone, which includes plenty of privileged material. Not only were there attorney-client communications, but likely information dealing with ongoing immigration litigation against the government — work product that is likewise shielded from government snooping.

The Fifth Circuit agrees Malik is right to demand this form of expungement and the DHS is wrong to refuse to destroy this seized data unless Malik drops his lawsuit. (All emphasis in the original.)

In the district court, DHS argued that “the information is being retained only because Malik requested a litigation hold,” and that Malik cannot not rely on this self-inflicted injury to show standing. And, on appeal, DHS has represented that it will “destroy the remaining data in its possession and will be happy to provide an appropriate certification to Malik that all data in the government’s possession has been destroyed and that no data was transferred to any other governmental or nongovernmental entity or person” as soon as these “proceedings” conclude. DHS made similar representations to the district court. In other words, DHS argues that this lawsuit is the only obstacle separating Malik from the expungement that he seeks.

We do not agree that Malik’s injury is self-inflicted. The injury is that DHS still possesses privileged information that it unlawfully seized from his phone. Malik did not volunteer that data to DHS, and he has no control over how DHS handles it. That is why Malik came to court. DHS argues that it will delete the data if Malik non-suits this case. But while the possibility of an alternate form of relief confirms that Malik has suffered an injury, it does not mean that he caused the injury. That is especially true here, where Malik lacks any power to redress his injury. Instead, the most he can do is non-suit this case and trust DHS to delete the data. Where redress cannot be self-actuated, we are hesitant to conclude that an injury is self-inflicted.

We also do not agree that DHS can moot Malik’s suit merely by promising to delete the data once the suit is over. By its very nature, a promise of some future action cannot redress Malik’s injury now. DHS’s promise, then, supports no more than a prediction that this case could be moot in the future. But it is not presently moot. Rather, DHS still has Malik’s data. Just as we will not rely on “conjectural or hypothetical” facts to find that standing is present, so too we will not rely on predictions and what-ifs to find that standing is absent. We hold that Malik has standing to seek expungement.

That’s great but there’s nothing in here for Malik, other US citizens, or their constitutional rights. When it comes to the border, the house always wins. What Malik is being given here is nothing more than existing precedent regarding expungement of privileged material. What no one is being given is any more protection from their own government just because they cross borders or seek to board international flights. When it comes to anything the government calls a “border,” the rights we were guaranteed are mostly null and void.

Filed Under: 4th amendment, 5th circuit, adam malik, border searches, phone searches, riley, warrants