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03/28/2018

Obstruction of the Tax Code: Supreme Court Limits Gov’t Power to Criminalize Sloppy Tax Filers

Did you commit a felony when you made those cash payments to your babysitter?  Last week, the United States Supreme Court issued an opinion answering the question as decisively, no. “Please,” you are probably thinking, “that could never have been the case.” But according to the federal government’s arguments in a recent criminal tax case at our nation’s highest court, such conduct could have constituted felony obstruction of the tax code if you knew your babysitter was likely not going to report the income to the IRS.

Under the government’s requested interpretation of 26 U.S.C. § 7212(a), which punishes anyone who corruptly obstructs or impedes the due administration of the tax code, such a payment to the babysitter would be “corrupt” because it would help another obtain an unlawful benefit (not paying taxes) and impede the IRS’s ability to collect those taxes.  In Marinello v. United States, however, Justice Breyer delivered a 7-2 decision that decisively narrowed the scope of conduct that constitutes felony obstruction of the tax code.  The decision should leave every taxpayer relieved that they cannot unwittingly become subject to criminal prosecution.

Cause of Action Institute filed one of only two “friend of the court” briefs at the certiorari stage, in partnership with the National Association of Criminal Defense Lawyers.  The two organizations partnered again at the merits stage to file a second “friend of the court” brief in support of Mr. Marinello’s position.

Carlo Marinello, II owned a small courier service in New York.  In 2012, the United States obtained an indictment against him for failure to file tax returns and for obstruction under 26 U.S.C. § 7212(a)’s “omnibus clause” of the criminal tax code, which makes it a felony to “in any other way corruptly…obstruct [] or impede [] or endeavor to obstruct or impede, the due administration” of the tax code.  The government argued that Mr. Marinello obstructed the administration of the tax code when he failed to maintain books and records for his small business, failed to provide his accountant with complete information, and discarded business records and receipts.  The government argued that these otherwise innocuous (and perfectly legal) acts were criminal because they impeded the IRS’s administration of the tax code and were done “corruptly” because they helped him obtain an unlawful benefit—evading taxes.  However, the tax code separately criminalizes tax evasion and failure to file tax returns and requires that the government prove that the defendant acted “willfully,” a heighted criminal intent, in committing these crimes.

Disagreeing with the government, the Supreme Court held that the “due administration of the tax code” as referenced in section 7212(a) did not cover any and all governmental efforts to collect taxes.  Rather, the clause refers to the specific interference with targeted governmental tax-related proceedings, such as a particular investigation or audit.  Specifically, the Supreme Court held that to secure a conviction under the “omnibus clause,” the government must show (among other things) that there is a “nexus” between the defendant’s conduct and a particular administrative proceeding, such as an investigation, an audit, or other targeted administrative action.  The government must also prove that the investigation or audit was pending at the time the defendant engaged in in the obstructive conduct or was at least reasonably foreseeable by the defendant.  Marinello v. United States, 584 U.S. __, __ (2018) (slip op., at 11).   In other words, the defendant’s actions must obstruct a currently pending proceeding or specific IRS audit.  This reasoning was based on a similarly worded criminal statute pertaining to the obstruction of “justice” as interpreted by the Supreme Court.  See United States v. Aguilar, 515 U.S. 593 (1993) (requiring proof that the defendant obstructed a specific pending proceeding, not just the government’s broad administration of justice).

With regard to a taxpayer’s payment to a babysitter, and citing an IRS regulation, Justice Breyer remarked the government’s interpretation of the statute could result in felony prosecution for a person who pays a babysitter $41 per week in cash without withholding taxes, leaves a large cash tip in a restaurant, fails to keep charity donation receipts, or fails to provide every record to an accountant.  As Justice Breyer stated, “[a] taxpayer may know with a fair degree of certainty that her babysitter will not declare a cash payment as income—and, if so, a jury could readily find that the taxpayer acted to obtain an unlawful benefit for another.”  The Supreme Court stated that if Congress had intended this result, it would have spoken with more clarity.

Justice Breyer further emphasized that criminal statutes must be narrowly interpreted and that courts cannot rely on promises of prosecutorial discretion to narrow the scope of a statute.  The Supreme Court has “traditionally exercised restraint in assessing the reach of a federal criminal statute, both out of deference to the prerogatives of Congress and out of concern that a fair warning should be given to the world in language that the common world will understand of what the law intends to do if a certain line is passed.”  Marinello, 584 U.S. at __ (slip op., at 4).  Moreover, the Court’s review of the broader statutory context of the entire Internal Revenue Code further counseled against adopting the government’s broad reading.  The Court noted that the tax code “creates numerous misdemeanors, ranging from willful failure to furnish a required statement to employees, section 7204, to failure to keep required records, 7203, to misrepresenting the number of exemptions, 7205, to failure to pay any tax owed, however small the amount, 7203.”  The Court stated that to interpret the statute as applying to any administration of the tax code would potentially transform many, if not all, of these misdemeanor provisions into felony obstruction, making the specific provisions redundant, or perhaps the subject matter of plea bargaining.  Id.  According to Justice Breyer, the government’s preferred interpretation would render superfluous many of the provisions of the same enactment, something that Congress could not have intended when it codified section 7212(a).

The Court further noted that it could not trust that prosecutorial discretion would limit the government’s use of the clause.  At oral argument, the government attorney conceded that under the Attorney General’s Charging and Sentencing Policy, where a more-punitive and less-punitive criminal statute may apply to a case, the prosecutor must charge a violation of the most punitive statutory provision that it can readily prove at trial.  Office of the Attorney General, Department Charging and Sentencing Policy (May 10, 2017).  To rely upon prosecutorial discretion to narrow the otherwise wide-ranging scope of a criminal statute’s highly abstract general statutory language places great power in the hands of the prosecutor. Marinello, 584 U.S. at __ (slip op., at 9).  The Court refused to construe the criminal statute on the assumption that the government will use it responsibly. According to Justice Breyer, doing so risks allowing “policemen, prosecutors, and juries to pursue their personal predilections,” id. (citing Smith v. Goguen, 415 U.S. 566, 575 (1974), which could result in the nonuniform execution of that power across time and geographic location.” Marinello, 584 U.S. at __ (slip op., at 9).

The Supreme Court’s holding is an important one for the rule of law, limiting the scope of overly broad criminal statutes, and protecting average taxpayers.

Erica Marshall is counsel at Cause of Action Institute

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03/22/2018

Supreme Court Limits Gov’t Power to Charge Criminal Penalties for Unknowingly Obstructing the IRS

Washington, D.C. – The Supreme Court this week issued a ruling protecting all Americans from prosecution for vaguely defined tax crimes. In the case of Carlo Marinello, II v. United States, it clarified a broad statute regarding who can be charged with criminal conduct for obstructing the IRS’s administration of the tax code. Cause of Action Institute (“CoA Institute”) filed an amicus curiae brief in support of Mr. Marinello’s petition for Supreme Court review, and another one during the merits stage, urging a narrow reading of the statute to ensure no one could be charged under it without knowing that he is committing a felony.

CoA Institute President John J. Vecchione: “As Justice Breyer noted, the law Mr. Marinello was charged under could be interpreted to make felonies of routine conduct by everyday American taxpayers and business owners, such as failing to report a payment to a babysitter. Without this important decision, sloppy tax filers could be charged with obstruction with just an allegation that the conduct helped the defendant avoid tax liability. We applaud the Court for reining in such broad and potentially abusive prosecutorial authority, and Cause of Action is proud of its efforts in this result.”

Mr. Marinello owned a small courier service in New York. In 2012, the United States obtained an indictment against him under the criminal tax code, arguing that Mr. Marinello could be guilty of corruptly obstructing or impeding the administration of the tax code by performing acts as common as failing to maintain books and records for his small business, failing to provide his accountant with complete information, and discarding business records, all because he did these acts with the goal of not paying taxes.  However, the tax code already outlaws tax evasion, and it requires that the government prove a heightened criminal intent—that the defendant acted “willfully.”

During oral argument, the Court showed enormous skepticism towards the Government’s position that virtually any act or omission, no matter how slight, could subject one to felony conviction, even though the particular tax code penalties for those actions are misdemeanors. In the Court’s opinion, Justice Stephen Breyer wrote “Just because a taxpayer knows that the IRS will review her tax return every year does not transform every violation of the Tax Code into an obstruction charge.”

The full opinion can be found here.

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

 

 

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12/6/2017

SCOTUS Oral Arguments Rundown: Marinello v. United States

Today the Supreme Court heard argument in Marinello v. United States No. 16-1144.  As we’ve noted before here and at the Federalist Society blog this case considers what level of knowledge a tax payer has to have to be subject to the omnibus felony penalties of 26 U.S.C. § 7212(a) .  Petitioner (Marinello) was represented by Matthew S. Hellman, Esq. and the government by Robert Parker.  From my perch, the Court showed enormous skepticism towards the Government’s position that virtually any act or omission, no matter how slight, could subject one to felony conviction, even though the particular tax code penalties for those actions are misdemeanors.  Justice Sottomayor, an active questioner in this case, seemed open to the view that the Government’s case was overcriminalizing acts that Congress had set out lesser penalties for but she seemed equally hesitant to adopt Petitioner’s solution-there can be no “corrupt” obstruction without knowledge by the Defendant that there is an IRS investigation.  She and Justice Gorsuch teamed up to offer Petitioner another way out, that there must be some affirmative interaction with the IRS.  Mr. Hellman appeared to resist this at first but, upon reflection, and most clearly in rebuttal, stated such a ruling would be acceptable (while continuing to press Petitioner’s view).

The Justices, including Justice Kagan, seemed troubled by the Petitioner’s proposed “fix” of the Government’s overreach on the statute because they could not square it with the text of Section 7212(a).  Even so, Justice Kagan, unprompted, called the statute “ungodly borad.”  Justices Breyer, Alito and Roberts, pressed the Government on the danger of common behaviors, such as using cash, that could become felonies under the Government’s construction.  Justice Breyer was concerned that paying a gardener or snow shoveler in cash could be felonious.  Justice Alito posited that a lower price for services if cash was paid is “known” to be for the purposes of not reporting income, and Justice Kagan agreed.  (This universal interpretation among the Justices is belied by what a small business owner once told me “Cash don’t bounce.”).  Justice Gorsuch took issue with the IRS position that it is a “brooding omnipresence” always collecting taxes and so a taxpayer should know throwing out receipts or keeping sloppy records will, as Justice Alito noted “impede” the IRS in administering the tax code.

Mr. Parker for the Government attempted to convince the Justices that the IRS and the Government were circumspect in the use of the omnibus provision.  Justice Kagan pounced.  Attorney General Sessions has famously issued a directive that the Justice Department charge the highest crime, with the most penalties possible in every case.  Mr. Parker’s attempt to lean on prosecutorial discretion was undermined as he had to admit the Justice Department policy to both Justices Kagan and Roberts who were concerned about it and obviously eager to make sure that policy was in the record and admitted by the Government.  Justice Ginsberg, whose late husband, Martin was a tax Professor at Georgetown, worried that any code violation could be charged as being done corruptly and thus subject to the extra three-year penalty and felony conviction.  Justices Gorsuch posited that the statutory language seemed to point to having to “corruptly” impede something other than just make the IRS’s job harder somewhere someday.  Justice Breyer insisted the Government agree with his definition of the mens rea requirement, which Mr. Parker eventually gamely did.

Upon rebuttal Petitioner made clear his position that any cabining of the statute the Court arrived at that recognized Mr. Marinello’s actions did not fall within the statute would be acceptable to Petitioner.  He and Justice Gorsuch agreed that “a win’s a win.”  Having picked up the signal from the Chief and Justice Kagan, Mr. Hellman finished noting that whether not giving everything to your accountant, using cash or keeping meticulous records would be criminalized rested on prosecutorial discretion that was obviated by the Justice Department’s “charge the highest crime” mandate.

At least from oral argument it appears the Government’s overbroad interpretation of the statute and its play for unrestrained prosecutorial power regarding it, is likely to doom its case despite a well-argued defense of that policy.  It also appears that the bright line rule that Marinello sought (and that we also pressed in our amicus) does not have the full support of the Court.  Nonetheless, today in this case it was a good day to be the Petitioner.

To learn more about this case, watch the short SCOTUSbrief video below, via The Federalist Society

John J. Vecchione is president and CEO at Cause of Action Institute, amicus

 

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11/29/2017

Inaccessible Criminal Codes and Their Domino Effects

On October 4, 2017, the Sentencing Reform and Corrections Act of 2017 (“SRCA”) was reintroduced in the Senate with bipartisan support. A version of the bill was first introduced in the Senate in October of 2015, but never received a vote. If signed into law, SRCA would reduce and restrict enhanced penalties for non-violent repeat drug offenders and eliminate the so-called “three-strike” mandatory life provision. SRCA also would apply to pending cases, “where the offense was committed before the date of enactment of this Act,” if a sentence has not been imposed as of the date of enactment,[1] and, would apply to past cases where, before the date of enactment, the defendant “was convicted of an offense for which the penalty is amended…and was sentenced to a term of imprisonment for the offense.”[2] Imprisonment terms may be reduced only if, “the defendant has not been convicted of any serious violent felony, and the sentencing court, after considering the nature and seriousness of the danger to any person, the community, or any crime victims, and the post sentencing conduct of the defendant, finds a reduction is consistent with SRCA and its amendments.”[3] This bill would also provide judicial discretion in the sentencing of certain low-level offenders below the 10-year mandatory minimum.[4]

The Sentencing Reform and Corrections Act is just the beginning of a much-needed conversation regarding reform of the criminal justice system. This post, the first in a series of posts on criminal justice reform, will focus on overcriminalization. For the purposes of this blog post, “overcriminalization,” means “the act of imposing unbalanced penalties with no relation to the gravity of the offense committed or the culpability of the wrong doer. It is the imposition of excessive punishment or sentences without adequate justification.”[5]

Over the past forty years, America has seen a dramatic increase in duplicative federal criminal laws.[6] While many have sought to enumerate federal crimes, the exact count remains unknown.[7] One estimate suggests that there are more than 4,000 federal criminal statutes.[8] Many of these statutes, include mandatory minimums.[9] With the use of mandatory minimums on the rise, the federal prison population has increased tenfold and the average federal sentence more than doubled since 1980.[10] The effects of overcriminalization do not end with the criminal code and excessive mandatory minimums; as many as 300,000 regulatory offenses now have criminal penalties that include prison time.[11]

If SRCA is signed into law, then the Attorney General will be required to submit a comprehensive list of “all criminal statutory offenses” to Congress, within one year.[12] Such a list will be the first of many tools available to begin reining in the ever-expanding criminal code and regulatory offenses.

Overcriminalization does not just affect those who end up behind bars, but also those who are unreasonably prosecuted. A few examples:

  • Bobby Unser, retired racecar driver was prosecuted by federal authorities for driving his snowmobile on protected federal land. Unser and a friend got lost during a snowstorm and were seeking shelter or assistance.[13]
  • In a Ft. Lauderdale park, members of a Christian outreach group were arrested and prosecuted for feeding the homeless. Local rules restricted food sharing.[14]
  • Christian Stanfield, who suffers from ADHD and was a victim of extreme bullying at South Fayette High School, PA, was charged with disorderly conduct under a wiretapping statute, because he recorded the abuse and went to school officials. Charges were eventually dropped.[15]

As these examples show, current application of criminal statutes reaches even the most innocent and sympathetic of “offenders.” Surely the statutes that produced these prosecutions were not intended to criminalize self-protection or charitable acts, and yet they did.[16],[17]

Overcriminalization needs to be stopped and reversed. Legislation like the Sentencing Reform and Corrections Act is a good first step.

Katie Parr is law clerk at Cause of Action Institute.

[1] Sentencing Reform and Corrections Act of 2017, S.1917, 115th Cong. (1st Sess. 2017)

[2] Id.

[3] Id.

[4] Id.

[5] U.S. Legal, https://definitions.uslegal.com/o/over-criminalization/

[6] Cato Institute, Cato Handbook for Policymakers, Chapter 17, Overcriminalization, 8th ed. 2017.

[7] See Ilya Shapiro, Not Everything Can Be a Federal Crime, Cato Institute (March 8, 2012), https://www.cato.org/blog/not-everything-can-be-federal-crime

[8] Overcriminalization, Right on Crime, http://rightoncrime.com/category/priority-issues/overcriminalization/

[9] FAMM, What are Mandatory Minimums?, http://famm.org/wp-content/uploads/2013/08/Chart-All-Fed-MMs-NW.pdf

[10] See 4, Erik Luna, Reforming Criminal Justice, Punishment, Incarceration and Release, Mandatory Minimums, 2017, at 137.

[11] Supra note 6 at 1.

[12] Supra note 1, at 1.

[13] Cato, supra note 4 at 1.

[14] Id.

[15] Sasha Goldstein, Criminal charge dropped against Pennsylvania bullying victim with learning disability who recorded his abusers, New York Daily News (April 14, 2014), http://www.nydailynews.com/news/national/charge-dropped-penn-bullying-victim-recorded-abusers-article-1.1760448

[16] Luna, supra note 5 at 133.

[17] With overcriminalization on the rise, the potential for undercriminalization may also rise. As Douglas Husak put it, “some conduct that should not incur penal liability will be subject to it, and some conduct that should incur penal liability will not be subject to it.” 1, Douglas Husak, Reforming Criminal Justice, Introduction and Criminalization, Overcriminalization, 2017, at 28.

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06/28/2017

Supreme Court to Hear Case on Obstruction of the Tax Code

The Supreme Court this week announced that it will hear the case of Carlo Marinello, II v. United States next fall.  The Supreme Court granted Mr. Marinello’s petition for a writ of certiorari after considering it in conference on June 26, 2017, the Court’s last day of the summer session.  Cause of Action Institute filed an amicus curiae brief in support of Mr. Marinello’s petition, urging the Supreme Court to hear the case to address the Second Circuit’s expansive reading of a tax statute that could be interpreted to criminalize routine conduct of everyday American taxpayers and business owners.

Mr. Marinello owned a small courier service in New York. In 2012, the United States obtained an indictment against him under 26 U.S.C. 7212(a)’s “omnibus clause” of the criminal tax code, which makes it a felony to “in any other way corruptly…obstruct [] or impede [] or endeavor to obstruct or impede, the due administration” of the tax code.  The government argued that Mr. Marinello could be guilty of corruptly obstructing or impeding the administration of the tax code by performing acts as common as failing to maintain books and records for his small business, failing to provide his accountant with complete information, and discarding business records, all because he did these acts with the goal of not paying taxes.  However, the tax code already outlaws tax evasion, and it requires that the government prove a heightened criminal intent—that the defendant acted “willfully.”  The Sixth Circuit, in order to cabin its expansive language, has held that an individual must have knowledge that his or her conduct is obstructing an ongoing IRS investigation in order to be found guilty under the omnibus provision.  The Second Circuit and other courts of appeals have interpreted the language much more broadly, however, causing a circuit split.

Cause of Action’s amicus curiae brief highlighted the importance of preserving mens rea, or “guilty mind” requirements and the need for our criminal code to clearly inform people about what is, or is not, illegal.  As Judge Jacobs wrote in his dissent from the rest of the judges on the Second Circuit, “if this is the law, nobody is safe.”  Cause of Action hopes that the Supreme Court will cabin the omnibus clause as the Sixth Circuit has done and intends to file a new amicus curiae brief at the merits stage.  You can check out our prior blog post on this case here.

Erica Marshall is counsel at Cause of Action Institute.

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04/26/2017

Criminal Prosecutions on Tax Day: “If this is the law, nobody is safe”

Tax Day is just behind us, marking the ceremonial American tradition of waiting to the last minute to electronically file a Form 1040 in the hopes of receiving a tax refund (or maybe that is just me). This year alone, the IRS expects to process approximately 150 million tax returns.  But few Americans stop to think before clicking “submit,” about the sheer breadth of information they are supplying.  A tax return is an intimate financial portrait that details your income, marital status, number of dependents, the property and assets you’ve acquired, and gifts you’ve received, all based on documents and receipts collected throughout the previous year.

Remember on tax day that while Title 26 of the United States Tax Code gives the IRS the power to levy taxes, it also creates criminal sanctions to make sure people pay what they owe. Tax evasion is a felony, as is failure to pay any tax due, filing a false return, and not filing a return at all in some cases.  But what if otherwise legal acts or omissions—like not keeping financial records, throwing away receipts, not giving all of your documents to your accountant, cashing checks, or even using cash—were also a felony under the tax code?  Tax cheats should be prosecuted, but the law needs to be applied in a way so that the millions of Americans who file tax returns every year, but might not keep receipts or documents, cannot be caught up in an overreaching prosecution.

This was the issue that faced the Second Circuit in United States v. Marinello.  Carlo Marinello ran a courier company in New York and didn’t file tax returns for a number of years.  He was indicted with eight counts for failure to file a tax return.  However, the government also charged him with a felony for “corruptly obstruct[ing] or imped[ing]…the due administration of the [tax code]” under 26 U.S.C. § 7212(a).

This statute states:

Whoever corruptly or by force or threats of force … endeavors to intimidate or impede any officer or employee of the United States acting in an official capacity under [Title 26], or in any other way corruptly or by force or threats of force … obstructs or impedes, or endeavors to obstruct or impede, the due administration of this title, shall, upon conviction thereof, be fined not more than $5,000, or imprisoned not more than 3 years, or both.

According to the indictment, Mr. Marinello could be guilty of the felony of corruptly obstructing or impeding the administration of the tax code by performing acts as common as “failing to maintain corporate books and records,” “failing to provide [his] accountant with complete . . . information related to [his] personal income,” “discarding business records,” “cashing business checks,” and “paying employees in cash” because he performed these acts and omissions with the intent to obtain an unlawful benefit—not paying taxes. The jury convicted Mr. Marinello on this basis, and the Second Circuit affirmed the conviction.

The other felony provisions in Title 26, including the felony for not paying taxes under section 7202, impose a “willfull” mens rea requirement, which requires the government to prove that the person had a “guilty mind” and acted with the knowledge that his conduct was unlawful, and made a voluntary, intentional violation of a known legal duty.  However, the obstruction statute punishes anyone who “corruptly” endeavors to obstruct or impede the administration of Title 26, a much lower standard.  To act “corruptly” is to act “with intent to gain an unlawful advantage or benefit for oneself or for another.”

As this otherwise statutorily-undefined term has been applied across the land, and by the Second Circuit in Mr. Marinello’s case, any act or omission that obstructs the administration of the tax code is a felony so long as the defendant committed that act or omission to gain an “unlawful benefit”—whether or not the defendant knew that benefit was unlawful, whether or not the act or omission itself is a legal act, and whether or not the unlawful benefit sought by the defendant was even related to the tax code.  Troublingly, this “obstruction” statute has become a catchall felony provision with a reduced mens rea requirement that has swallowed the other criminal provisions in the tax code.  For example, it is hard to imagine how failing to file a tax return would not also impede the administration of the tax code.

Disagreeing with the Second Circuit, and concerned about the overbreadth and vagueness of the statute, the Sixth Circuit has cabined the obstruction statute to require that the government prove that the defendant took action to impede or obstruct a pending IRS investigation or action, such that a particular IRS employee was obstructed by the defendant’s conduct. United States v. Kassouf, 144 F.3d 952 (6th Cir. 1998).

Mr. Marinello filed a petition for a writ of certiorari with the Supreme Court, asking it to hear his case and resolve the split between the Sixth Circuit and the Second Circuit. Cause of Action Institute and the National Association of Criminal Defense Lawyers filed a “friend of the court” brief, urging the Supreme Court to take the case to clarify the type of conduct that is criminalized under the tax code.  As Judge Jacobs of the Second Circuit warned in his dissent from the rest of the court, “if this is the law nobody is safe.”

The full amicus brief can be found here

Erica Marshall is counsel at Cause of Action Institute

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03/20/2017

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

 

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