- The Washington Times - Sunday, March 26, 2017

Civil liberties groups and privacy advocates seeking to rein in border agents’ warrantless searches of cellphones are backing the appeal of Turkish man’s conviction for attempting to smuggle firearms parts out of the United States, arguing that a month-long forensic search of the man’s phone was illegal.

The appeal comes as such groups have grown increasingly worried over a dramatic uptick in warrantless searches that border agents conduct on travelers’ electronic devices.

The problem lies in the amount of information at a border agent’s fingertips if the law is interpreted to allow warrantless searches of cellphones, laptops or other devices that can contain troves of information about a person’s life, said Adam Schwartz, an attorney with the Electronic Frontier Foundation, which has filed a statement of interest in the appeal.

Mr. Schwartz likened such an intrusive search to a scenario in which agents searched through the contents of every backpack a person owned rather than just the one carried across the border.

“For decades, there has been a border doctrine where the government has more power to search our stuff. That’s well and good for the 20th century things we are carrying, like when it applies to papers or our backpack,” Mr. Schwartz said. “Our position is that if the government wants to search someone’s phone, the government ought to get a warrant.”

Data provided by Customs and Border Protection shows agents performed 23,877 searches of electronic devices in 2016, or about five times more than the previous year. The searches affect a small number of travelers, equating to an average of 65 per day out of the more than 1 million people who fly internationally or cross the border into the United States daily.

But the uptick has heightened concern among privacy rights groups, who say the intrusive searches go far beyond what was originally envisioned when courts granted border agents authority to search travelers’ vehicles or luggage. And they worry that agents are using the border search exception as a loophole to get around the Fourth Amendment requirement that law enforcement show probable cause in order to obtain a search warrant.

The case in question involves Hamza Kolsuz, who in 2016 was convicted of conspiring to violate the Arms Export Control Act after he was stopped before boarding a plane to Turkey with luggage full of firearms parts that cannot be exported without a license.

Kolsuz, who has appealed his case to the U.S. Court of Appeals for the 4th Circuit, was known to homeland security officials for previously attempting to smuggle firearms parts that were banned from export out of the United States. As he sought to fly out of Washington Dulles International Airport, he was stopped, his luggage searched and agents found various firearms parts — including 18 handgun barrels, 26 handgun magazines and a .22-caliber Glock conversion kit.

Agents also seized Kolsuz’s cellphone and searched through recent text messages and call logs as he was detained at the airport. After agents arrested Kolsuz, they conducted a month-long forensic search of his phone and created a nearly 900-page report detailing his internet browsing history, text and Kik application messages, photos taken with the phone, emails and GPS coordinates showing where he had carried the phone.

During the initial case, Kolsuz’s attorneys sought to suppress evidence obtained from the phone, arguing that agents actions went beyond a routine border search, which does not require a warrant, probable cause, reasonable suspicion or any level of individualized suspicion.

U.S. District Judge T.S. Ellis disagreed, ruling that the phone search did not run afoul of the Fourth Amendment.

At trial, government attorneys introduced as evidence several chat transcripts which they said showed that Kolsuz acted willfully when he attempted to export firearm parts without a license. Kolsuz was convicted on three criminal counts and sentenced to 30 months in prison.

In an appeal to the 4th Circuit, Kolsuz’s defense attorney pointed to the U.S. Supreme Court’s 2014 Riley v. California decision, in which the court found that police generally require a warrant to search the contents of a cellphone seized from someone who was arrested.

“As the Supreme Court recognized in Riley, modern smartphones contain such an extraordinary trove of data about a person that their search is exponentially more intrusive upon a person’s privacy than the sort of physical searches historically associated with searches incident to arrest or border searches,” wrote Todd Richman, the assistant federal public defender handling Kolsuz’s appeal. “Given the breadth of private information smartphones contain, a warrant should be required before law enforcement may forensically search them in furtherance of the government’s border search authority.”

A spokesman for the U.S. Attorney for the Eastern District of Virginia declined to comment on the appeal. But prosecutors have previously defended the legality of border searches of electronic devices, noting in prior briefs filed in the Kolsuz case that “searches of persons and their effects at the border constitute a long-recognized exception to the Fourth Amendment’s warrant requirement.”

“Riley does not suggest, let alone require, the presence of a warrant to conduct a border search of a cellular phone or other electronic device,” DOJ attorneys wrote in their response to Kolsuz’ motion to suppress evidence during his first trial. “Indeed, the Supreme Court has never imposed the requirement of a warrant for a border search. Neither has any other court.”

Prosecutors went on to argue that the search of Kolsuz’s phone was a border search, and not a search incident to arrest that could have required a warrant.

“The ability to conduct suspicionless searches of electronic devices at the border is closely tied to the historical justifications for border searches,” prosecutors wrote. “Specifically, such searches are central to the governmental interest in preventing the movement of certain materials — for example, export-controlled items — and persons across the border.”

The Justice Department was ordered to file a response to the 4th Circuit appeal by April 24, according to court records.

In the meantime, the challenge has started to draw support from a myriad of legal and civil liberties groups who also believe the scope of warrantless border searches should be curtailed when it comes to electronic devices. Joining the Electronic Frontier Foundation in their friend of the court brief are the Asian Law Caucus, Brennan Center for Justice, Council on American-Islamic Relations, and the National Association of Criminal Defense Lawyers.

The American Civil Liberties Union, Committee for Justice and Cause of Action have also filed separate briefs indicating interest in the case.

“This case presents an important question about the extent of Fourth Amendment privacy rights in the digital age, where the use of mobile devices is widespread,” wrote the ACLU in a brief filed this week. “The government’s assertion of authority to search such devices without any individualized suspicion when an individual is crossing the border — whether entering or leaving the United States — creates an end-run around Fourth Amendment protections that would otherwise apply to the voluminous and intimate information contained in those devices, and is not justified by the rationale permitting routine border searches.”

ACLU attorney Nathan Wessler said the case is just one of several that privacy rights activists may get involved in as they push for stricter limits on searches in the digital age. He said the key question at the heart of this, and many other Fourth Amendment cases involving technology, is why laws drafted with searches of backpacks or vehicles in mind are being interpreted to apply equally to searches of electronic devices.

“We need to explain why a search of a suitcase is categorically different than a laptop or a phone,” Mr. Wessler said. “Those distinctions may not initially be obvious to judges, but they are very important.”

• Andrea Noble can be reached at anoble@washingtontimes.com.

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