The Federal Government has consistently maintained, and been upheld in, the assertion that the border search exception allows it to conduct searches and seizures at international borders without a wrrant or probable cause. While this assertion is generally accepted, the government's stance that electronic devices, such as computers and smartphones, also fall within this exception has been a point of contention. However, a recent 4th Circuit Court of Appeals case, United States v. Kolsuz, is being hailed as a significant victory by civil rights organizations such as the Electronic Frontier Foundation and the American Civil Liberties Union.
United States v. Kolsuz, deals with the case of Hamza Kolsuz, a Turkish national charged with three counts of violating the Arms Export Control Act. According to court filings, Kolsuz had attempted to smuggle prohibited firearms parts from the U.S. to Turkey on three separate occasions. On the third and most recent attempt, Customs officials were prepared and intercepted Kolsuz at Washington Dulles International Airport. Importantly, after his arrest, Customs agents conducted an immediate manual search of his smartphone and an additional month-long, off-site forensic analysis of the phone. Kolsuz's appeal concerns the suppression of this forensic analysis, which he maintains does not fall under the border search exception.
In many ways, this was a case that many likely saw coming. Case law concerning the 4th Amendment and electronic devices has been frequent and in the public eye. The notion that electronic devices may not fall under the border exception first came to the forefront in 2013. United States v. Cotterman, a 9th Circuit decision, held that manual searches of computers at the border fell under the exception, but forensic searches required reasonable suspicion. Prior to this, the governing decision was United States v. Ickes which held that computers were ordinary searches. Then, in 2014, the Supreme Court ruled in Riley v. California. Riley held that a warrant is required to search a cell phone following an arrest. The Supreme Court essentially established differential treatment between digital and physical items due to the sheer amount and sensitivity of personal information that can be stored on cell phones.
These two cases, among others, caused many to question if Riley might influence Cotterman and also apply to the border. More recently, the Fifth and Eleventh Circuits heard cases on forensic searches but failed to reach a substantive conclusion due to the scope of their cases.
The Kolsuz decision, citing Riley, affirms that at least reasonable suspicion is required for forensic searches of cell phones seized at the border. Taking Riley into account, the 4th Circuit, using language similar to United States v. Flores-Montano, found that forensic searches of phones are clearly non-routine border searches, but did not challenge Ickes due to the scope of the appeal. Moreover, the court left open the possibility that a standard even higher than reasonable suspicion could be required, but that which standard made no difference to the Kolsuz case. In response to Kolsuz, the Department of Homeland Security now internally requires reasonable suspicion for forensic searches of electronic devices.
While the outcome of Kolsuz may not have been positive for Kolsuz himself, who was convicted of his export violations, it is being hailed by many as a win. Moreover, it is likely just one of many upcoming cases concerning the Fourth Amendment's application to digital searches as the ACLU and EFF, among other organizations, push ahead with their own cases.