11th Circuit Says No Reasonable Suspicion Needed For Invasive Device Searches At The Border

from the welcome-back-to-the-US,-please-hand-over-your-everything dept

A recent Fourth Circuit Appeals Court decision found government agents at US borders need something more than the nothing currently required to perform searches of electronic devices. Cursory searches without suspicion are still fine in the Constitution-free zone, but forensic searches of cellphones need, at minimum, reasonable suspicion.

This decision aligned the Fourth with the Ninth Circuit, where it was also determined forensic device searches require some sort of suspicion, even if performed at the border. A case out of Massachusetts (First Circuit) challenging a suspicionless device search has been allowed to move forward, possibly bringing another circuit into the mix and deepening the split.

The Eleventh Circuit Appeals Court, however, has sided with the government and against citizens' privacy. It has upheld the lower court's determination that border device searches require no reasonable suspicion, no matter what the Supreme Court said in its Riley decision, which created a warrant requirement for phone searches. (via Jake Laperruque, Brad Heath)

Karl Touset had his devices searched at the Atlanta airport after returning from an overseas trip. This followed some investigatory work by the government which suggested Touset might be involved in child pornography. The detainment and search was also prompted by money transfer service Xoom, which reported several people for making "frequent low money transfers" to people in "source countries" for child porn.

Touset was met by CBP agents on arrival. Manual searches of his two phones revealed nothing, but CBP seized Touset's laptops and external hard drives. Those were forensically searched and child porn was discovered. These warrantless searches were challenged by Touset, but the Eleventh Circuit [PDF] immediately shuts down this line of reasoning by citing the Supreme Court.

The Supreme Court has never required reasonable suspicion for a search of property at the border, however non-routine and intrusive, and neither have we.

Arguing that devices that hold thousands of pieces of personal info doesn't help.

Nor has it “been willing to distinguish . . . between different types of property.”

Neither does pointing out the invasiveness of a forensic search, which can recover long-deleted files or other electronic detritus.

And it rejected a judicial attempt to distinguish between “routine” and “nonroutine” searches and to craft “[c]omplex balancing tests to determine what [constitutes] a ‘routine’ search of a vehicle, as opposed to a more ‘intrusive’ search of a person.” We have been similarly unwilling to distinguish between different kinds of property.

Going from there, the Appeals Court says the Fourth Amendment doesn't apply at the border -- no matter what the Supreme Court justices may have said about the ubiquity of devices capable of storing people's "entire lives."

We see no reason why the Fourth Amendment would require suspicion for a forensic search of an electronic device when it imposes no such requirement for a search of other personal property. Just as the United States is entitled to search a fuel tank for drugs, see Flores-Montano, 541 U.S. at 155, it is entitled to search a flash drive for child pornography. And it does not make sense to say that electronic devices should receive special treatment because so many people now own them or because they can store vast quantities of records or effects.

The Appeals Court acknowledges its split with the Fourth and Ninth Circuits before moving on to point to its own precedent as being the correct conclusion.

We are unpersuaded. Although the Supreme Court stressed in Riley that the search of a cell phone risks a significant intrusion on privacy, our decision in Vergara made clear that Riley, which involved the search-incident-to-arrest exception, does not apply to searches at the border. 884 F.3d at 1312 (“[T]he Supreme Court expressly limited its holding to the search-incident-to-arrest exception.”). And our precedent considers only the “personal indignity” of a search, not its extensiveness. Vega-Barvo, 729 F.2d at 1346. Again, we fail to see how the personal nature of data stored on electronic devices could trigger this kind of indignity when our precedent establishes that a suspicionless search of a home at the border does not.

And it appears the Eleventh Circuit has reached this conclusion simply because it has strong feelings about the contraband discovered.

Indeed, if we were to require reasonable suspicion for searches of electronic devices, we would create special protection for the property most often used to store and disseminate child pornography.

This ignores the fact that electronic devices are most often used to store and disseminate almost everything -- most of it legal. This is the court refusing to even slightly raise the bar for invasive forensic searches just because it doesn't like this particular appellant. This decision allows the government to root around in everyone's personal papers without a warrant just because some people may carry illicit goods across the border. This isn't a rational reason for refusing to even consider raising the bar to reasonable suspicion (which the agents had in this case). This feels more like an emotional decision, rather than one neutrally-applied, and it does nothing to protect millions of innocent travelers from their government.


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  • icon
    Mason Wheeler (profile), 1 Jun 2018 @ 1:28pm

    Wait a second. I'm a bit confused here; how did it reach this point in the first place?

    What definition is being used, that multiple reports from distinct, trustworthy sources both government and private, indicating that this guy was most likely involved in child pornography, do not constitute reasonable suspicion that this guy is probably involved in child pornography?

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 1 Jun 2018 @ 1:48pm

      5-10 minutes to save days and weeks

      Was just about to leave a comment to that effect. They had investigated him and found suspicious money transfers, getting a warrant should have been trivial. The court salvaged a case that should have been tossed due to warrantless searches, yet it never should have reached that point to begin with.

      How lazy and/or incompetent do you have to be to not bother with a warrant when you have actual evidence to justify one, or is it just habit at this point?

      reply to this | link to this | view in chronology ]

      • icon
        Uriel-238 (profile), 1 Jun 2018 @ 3:44pm

        Re: 5-10 minutes to save days and weeks

        Maybe, like the FBI not bothering to bypass security before pressing by all-writs, the court is trying to set a precedent by not going through proper procedure to suggest the procedure isn't needed?

        reply to this | link to this | view in chronology ]

        • icon
          That One Guy (profile), 1 Jun 2018 @ 11:08pm

          Re: Re: 5-10 minutes to save days and weeks

          Possible, though I suspect it's a mixture of habit and indifference. If they know that they can get away with doing something without a warrant then why bother getting one? It takes time, it creates a paper-trail, and it accomplishes nothing on their side, so why bother?

          reply to this | link to this | view in chronology ]

          • icon
            Uriel-238 (profile), 2 Jun 2018 @ 12:47am

            It's the paper trail

            That seems to be something to which US law enforcement is adverse, throughout all departments.

            reply to this | link to this | view in chronology ]

            • icon
              That One Guy (profile), 2 Jun 2018 @ 6:07pm

              Re: It's the paper trail

              For about the same reason so many of them object to having cameras that they don't control recording their actions I imagine. It takes it from a straight up 'My word vs yours' into the realm of 'here's what the video shows/the warrant said, and here's what actually happened.'

              Much easier to bend/break the law you're tasked to uphold if the only evidence is in your possession, and the only limits are in what the court allows after the fact.

              reply to this | link to this | view in chronology ]

    • identicon
      christenson, 1 Jun 2018 @ 1:49pm

      Re: They had reasonable suspicion, but *no warrant*

      As in the case from Charlottesville, yesterday, the government agents had plenty of reason to suspect they'd find contraband. It would likely have been trivial to get a judge to sign off on a warrant.

      However, there was quite an invasion of property to find it, and the fourth amendment requires a WARRANT for such invasive searches.

      IMO, and I think that of Techdirt, it should not matter where the search takes place, who is being searched (citizen or not, getting hard to tell apart), or why the search takes place.

      P.S. By your reading this message, child porn has been planted on the unallocated space on your computer hard drive for distribution via TOR!

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 1 Jun 2018 @ 1:51pm

      Re:

      If you read the decision, it says that they actually DID have reasonable suspicion, even though they didn't need it.

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 1 Jun 2018 @ 1:54pm

        'You know, just in case any OTHER agents might be interested...'

        That's almost worse. 'They did have reasonable suspicion this time, but just to be clear they didn't need to have it to perform a search.'

        reply to this | link to this | view in chronology ]

  • icon
    radix (profile), 1 Jun 2018 @ 2:02pm

    We see no reason why the Fourth Amendment would require suspicion for a forensic search of an electronic device when it imposes no such requirement for a search of other personal property

    Ummm...

    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.

    Either this is extremely poorly written, or these judges have never read the Constitution.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 1 Jun 2018 @ 2:06pm

      Re:

      Or they have read it and decided that nah, that sounds too hard(for those with badges), so they'll just ignore what it clearly says.

      reply to this | link to this | view in chronology ]

      • icon
        Anonymous Anonymous Coward (profile), 1 Jun 2018 @ 2:40pm

        Re: Re:

        I am beginning to think that they do understand it. What is hard is how they twist and turn to find ways to find exceptions that, at least to them, sound plausible.

        reply to this | link to this | view in chronology ]

        • icon
          That One Guy (profile), 1 Jun 2018 @ 2:56pm

          'It's more of a guideline really, a vague suggestion...'

          Assuming they have read it and do understand it, my guess would be that they see it as a general guideline rather than a hard and fast rule. Something that you might want to stay generally within the limits put forth, but where you can ignore it entirely if following it would prohibit something you want to do/allow.

          reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 1 Jun 2018 @ 2:17pm

      Re:

      But, obviously, "the people" means "the people in the United States," and "at the border" obviously doesn't count as being "inside the US."

      Oh, and for the purposes above, "the border" extends 100 miles into the US. For reasons.

      reply to this | link to this | view in chronology ]

    • icon
      The Wanderer (profile), 6 Jun 2018 @ 7:47am

      Re:

      I think their reasoning is something like:

      • The Fourth Amendment requires that the search be reasonable.
      • However, the Fourth Amendment does not say that the only way for a search to be reasonable is for it to be predicated on reasonable suspicion.
      • Because border enforcement cannot meaningfully be carried out without border searches, searches pursuant to border enforcement are presumptively - if not inherently - reasonable. (There's probably a long line of other reasoning underlying the border-enforcement thing, which I don't have ready to mind.)
      • Therefore, because border searches are reasonable for reasons not related to suspicion, they do not require reasonable suspicion.

      If you want to contest the conclusion, you'll probably need to contest the very idea that border-enforcement searches are presumptively reasonable, if not the underlying basis for that idea. How best to do so I am not sure.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Jun 2018 @ 2:13pm

    People have been routinely searched at the border for literally centuries, but that was largely to check for "undeclared" contraband and unpaid import duties. Some countries would search you in both directions. Then international terrorism came along and things got even worse.

    I don't have much of a problem with routine searches at the border because that's the way it's always been. My chief complaint is the USA's 100-mile wide constitution-free "border zone".

    International travelers would do well to carry an empty throwaway device and to send all your subversive documents, snuff films, animal and child porn, and whatever else might get you in trouble with the law over the internet rather than toting it through a border crossing.

    reply to this | link to this | view in chronology ]

    • icon
      Avatar28 (profile), 1 Jun 2018 @ 2:30pm

      Re:

      It's kind of at the point that if I ever go to Canada or another country I'm just going to wipe my phone before I leave. Don't want to get caught with MP3 files on it, I can't prove they aren't pirated (and some might be), or naughty pictures of myself and my fiancee). Just wipe it before I go and then wipe it again after I get back and spend a day restoring the backup.

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 1 Jun 2018 @ 2:52pm

        Re: Re:

        Just get a burner phone that is only used when travelling.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 2 Jun 2018 @ 10:03pm

        Re: Re:

        MP3 files, themselves, are not illegal. If any piracy was done before the 5 year statute of limitations, that should not be a problem.

        Under the no electronic theft act, they would have to prove that you downloaded $2500 worth within a 6 month period. Having the files itself would not be a crime. They would also have to prove that you did so before the 5 year statute of limitations expired. All federal crimes, unless a specific statute says otherwise, have a 5 year statute of limitations.

        And converting DRM encased files to MP3, for personal use, is not a felony crime under the DMCA, since it is not being done for any kind of financial gain. So a few songs purchased from iTunes that were recorded to cassette tape, then re-recorded to MP3 files would not violate the DMCA, as it was not done for any kind of financial gain. Record to cassettes to either make MP3 files, or to play in the car did not violate the DMCA when I did that years ago because it was not being done for financial gain. Plugging a tape recorder into my computer did not break the DMCA.

        I have not downloaded anything illegally from any file sharing service, since 2003, so there would be no problem as the statute of limitations has long since expired.

        Pictures of yourself and your fiancee should be OK, as long as you were both over 18 when the pictures were taken. For it to be child porn, once of you would have had to have been under 18 at the time the pictures were taken. That is the law in the USA, Canada, or Mexico.

        Some people in here may talk about violating Sarbanes Oxley doing this, but if you have Android 6.0 and above, it can be done in a way, where they will never figure out you wiped information. You first encrypt your entire device, and then factory reset it. Once that is done, the decryption keys to the old encrypted data are lost.

        You then overwrite the memory and SD card, and then you reset again. That will guarantee that nothing that was there can ever be recovered, and they will never be able to prove any violation of Sarbanes Oxley.

        Canada and Mexico have no equivalent of Sarbanes Oxley, so you would not have to worry about breaking Canadian or Mexican laws.

        The way Sarbanes Oxley is written makes it unique to the USA, which is why someone charged under Sarbanes Oxley could flee to Canada or Mexico, as both countries prohibit extradition, if is not a crime there.

        That is why draft dodgers in WWII, Korea, and Vietnam went to Canada. Draft dodging is not a criminal offense there, meaning they could not be extradited back to America.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Jun 2018 @ 2:56pm

    Well since Gang Rape is A-OK

    Just violating your devices you should feel lucky they did not brutally GANG RAPE you, pick up that can citizen and if your lucky we will not GANG RAPE you and just for extra effect murder you, so feel good citizen we did not GANG RAPE AND MURDER you pray we don't alter the bargin any more, no there was no bargin WE HAVE THE GUNS AND FUCK YOU BECAUSE WE LIKE IT.

    reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 1 Jun 2018 @ 4:30pm

    Any one?

    Ever hear of a Judge getting searched?
    A gov. representative, Federal or State??

    reply to this | link to this | view in chronology ]

    • icon
      Anonymous Anonymous Coward (profile), 1 Jun 2018 @ 6:10pm

      Re: Any one?

      Now that might be an interesting exercise. Invite 4 federal judges (2 male, 2 female) 4 Congress critters (1 male, 1 female republican and 1 male, 1 female democrat, members of the leadership would be better) along with a mix of senior three letter agency types, both male and female to a soiree in say Antigua. They all have to show up for the same commercial flight and there could be many, many, many cellphones there to record their reactions.

      It won't happen, of course, but if it did, I bet some things would change thereafter.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 1 Jun 2018 @ 6:42pm

        Re: Re: Any one?

        This is literally the reason why their class is separated and flies privately. The whole TSA and rights-violating searches just never happen to them and so don't happen to anyone who really matters. If the constitution doesn't apply on their side, it is null and void altogether.

        reply to this | link to this | view in chronology ]

        • icon
          amozabael (profile), 2 Jun 2018 @ 12:26pm

          Re: Re: Re: Any one?

          That is becuase a private jet has not been hijacked or otherwise used in an attack. But if something like that ever happens, the TSA will change its tune really quickly.

          reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 1 Jun 2018 @ 5:58pm

    "we would create special protection for the property most often used to store and disseminate child pornography"

    Hey guys I think I found out why the courts don't want to have systems better than the 1970s.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Jun 2018 @ 6:57am

    Time to form the NFAA

    National Fourth Amendment Association which has tons of Lobbyists and cash to do for the 4th Amendment what the NRA has done for the 2nd.

    The 4th has no clause about a Well Regulated Anything to muddy the waters.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Jun 2018 @ 7:30am

    'This feels more like an emotional decision, rather than one neutrally-applied'

    there would be a different ruling if one of the judges were on the receiving end of a 'border search'! same old story though, it aint me, so i dont care and as it's you and i dont like you, fuck you, you can be searched at any time for anything without the slightest bit of privacy under the 4th Amendment being valid. while we're at it, let's throw out the whole constitution and allow the USA to be a complete police-run country where no ordinary citizen has any rights whatsoever!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Jun 2018 @ 9:08pm

    There is one way you can obliterate evidence on Android 6.0 and up and the goverment will never figure out that you wiped your phone. You first encrypt your device, and then reset. You then overwrite the old encrypted with other data, and then reset again.

    They will never figure out that you wiped your phone, and not have enough evidence to charge you under Sarbanes Oxley.

    If you have Android 6.0 and up, and you do all that, there is no possible way the can get any evidence off your device that you destroyed potential evidence.

    reply to this | link to this | view in chronology ]


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