A Warrantless Phone Search, A Dangerous Precedent

Washington D.C. – Cause of Action Institute (“CoA Institute”) today filed an amicus curiae brief in support of Defendant Hamza Kolsuz who in February, 2016 was arrested at a Virginia airport attempting to board a plane bound for Istanbul, Turkey.

At the time of his arrest, U.S. Department of Homeland Security (“DHS”) Customs and Border Patrol (“CBP”) officers seized Mr. Kolsuz’s iPhone and subsequently ordered a month-long, warrantless forensic search, resulting in nearly 900 pages of detailed information, including Mr. Kolsuz’s internet-browsing history, text messages, emails, and various geographic locations he had visited. Under a 2014 Supreme Court case, any search of a cellphone seized during an arrest requires a warrant.  

While Mr. Kolsuz filed a legal motion to suppress the evidence obtained without a warrant, the presiding judge ruled that the search constituted a border search, and was therefore legal under a narrow exception to the Fourth Amendment. Mr. Kolsuz was found guilty and sentenced to thirty months in prison.

We believe the District Court erred in allowing the evidence. Our brief urges the court to reverse the previous decision and grant Mr. Kolsuz a new trial.  While in certain circumstances, a border search may be conducted without a warrant, in this instance the governmental interests that justify this exception were not in play because neither Mr. Kolsuz nor his phone were crossing any border after his arrest. 

The brief states:

At the time of the search, neither Mr. Kolsuz nor his smartphone were in the process of crossing any border. The Government was not furthering any interest in prohibiting the entry or exit of contraband, enforcing currency control, levying duties or tariffs, or excluding travelers without the property documentation to enter the country…

The privacy interests inherent in electronic devices are so high as to require a minimum of probable cause to justify their search.  Any less protection will continue to chill First Amendment protections, harm business interests, and violate the Fourth Amendment rights of Americans to be free from unreasonable search and seizure.

Federal customs agencies have essentially turned what was supposed to be a narrow exception to the Fourth Amendment’s warrant requirement into a loophole to search anyone’s cellphone or laptop without any reasonable suspicion or probable cause to suspect them of a crime.  Under current DHS “guidance,” anyone who travels internationally can be detained, asked to grant a customs agent access to their cellphone or laptop (including their social media accounts, email, and other remotely-stored information), and even face seizure of their device for off-site searching if they refuse to consent to the search.  News reports have detailed the recounts of many Americans who have been subjected to this policy.  DHS searched 5,000 electronic devices in February of this year alone.  

In addition to the troubling implications under the Fourth Amendment’s right to privacy, the brief outlines how electronic devices are such a commonplace tool that modern business would be unable to function without them.  Journalists and legal organizations rely on smartphones, tablets, and laptops to communicate with sources around the world, store research and contact information, draft and publish news articles, and film or photograph live events, and upload stories to social media.  Similarly, lawyers routinely utilize laptops and smartphones as repositories of attorney-client communications and work product documents. Businesses also need such devices to perform proprietary work, transmit documents detailing trade secrets, and remotely access company information.   

The courts have carefully crafted legal balancing tests that recognize the need to protect certain information, like journalist sources, attorney-client privileged information, and confidential trade secrets, by allowing the government to access such privileged information only when certain compelling justifications exist. In this regard, the current DHS “policy” purporting to allow the agency unfettered access to information at the border does not only contravene the privacy rights of individuals, but also disrupts other carefully-created judicial safeguards that protect the information of businesses, journalists, and lawyers’ clients, from disclosure.

The brief was filed on behalf of Cause of Action Institute, along with the Committee for Justice, a nonprofit organization dedicated to promoting the rule of law, and Floor64 Inc. that publishes the online news site, Techdirt.com. Techdirt’s journalists routinely depend on the ability to protect its sources and private information.

The full brief is available here

For information regarding this press release, please contact Zachary Kurz, Director of Communications at CoA Institute: zachary.kurz@causeofaction.org