Appeals Court Rules Suspicion Required for Forensic Searches of Phones at Border

The Fourth Circuit Court of Appeals in Richmond, Virginia recently issued a ruling in the case of United States v. Kolsuz. The appeals court ruling in the Kolsuz case created a significant change in how the 4th amendment of the constitution of the United States applied to searches of cell phones and other electronic devices at the border.

While the Fourth Circuit Court of Appeals ultimately upheld the conviction of Turkish citizen Hamza Kolsuz, the court also created a new limitation on border searches. Many organizations had filed amicus curiae briefs in support of Hamza Kolsuz, including the Electronic Frontier Foundation (EFF), the American Civil Liberties Union (ACLU), the National Association of Criminal Defense Lawyers, Floor64, Inc. (the parent company of TechDirt), and other organizations.

In the Fourth Circuit Court of Appeals ruling the appeals court held that the government must have a form of individualized suspicion before a forensic search can lawfully be conducted on devices seized at the border. The appeals court ruled that agents of the United States Customs and Border Protection had reasonable suspicion to conduct a forensic search of Hamza Kolsuz’s iPhone. Kolsuz was arrested while trying to board a flight to Turkey at Washington Dulles International Airport. Customs and Border Patrol agents arrested Kolsuz after they had discovered parts to firearms in his checked luggage. The Customs and Border Protection agents had a suspicion that Kolsuz did not have an export permit for the firearms parts that is required by the Arms Export Control Act.

The Customs and Border Protection agents conducted a forensic search of Kolsuz’s iPhone and, using the vast amount of personal information contained in the iPhone, produced a report that was nearly 900 pages long. The forensic search of the iPhone took one month and was conducted off site. Software made by the Israeli company Cellebrite was used to conduct a forensic search of Kolsuz’s iPhone. Using Cellebrite’s forensic search software, the border agents were able to see Kolsuz’s call logs, contact list, emails, text messages, instant messages, photographs, videos, web browsing history, and past GPS coordinates. The border agents’ search and the ensuing report helped to convict Hamza Kolsuz of conspiracy and violating the Arms Export Control Act in the United States District Court for the Eastern District of Virginia. Kolsuz was sentenced to 30 months in federal prison.

The ruling in United States v. Kolsuz is similar to a 2013 ruling from the Ninth Circuit Court of Appeals in the case of United States v. Cotterman. In the case of United States v. Cotterman, a federal appeals court ruled that electronic devices, such as a laptop or a digital camera, could not be searched at the border without a reason for suspicion. The ruling from the Fourth Circuit Court of Appeals in Kolsuz’s case does not address manual on-site searches of devices at the border. “Because Kolsuz does not challenge the initial manual search of his phone at Dulles, we have no occasion here to consider whether Riley calls into question the permissibility of suspicionless manual searches of digital devices at the border,” Circuit Judge Pamela Harris wrote in the opinion joined by Circuit Judge Diana Gribbon Motz. Circuit Judge J. Harvie Wilkinson III wrote a separate opinion which concurred with the judgement.

For people traveling to or from the United States, it may be best to travel with fresh burner phones or devices. In January, Customs and Border Protection issued a new directive on border searches of electronic devices. Under the new directive, travelers are allowed to refuse to hand over the password or decryption key needed to access their electronic device. However, while Customs and Border Protection agents are not allowed to deny entry to citizens of the United States, non-citizens could be denied entry into the United States if they refuse to hand over the password, or decryption key of their electronic device. Customs and Border Patrol may detain a device for several days if they are unable to gain access to it.