Eleventh Circuit Judge Endorses Warrant for Border Device Searches

from EFF

A recent federal appeals court decision shows that at least one judge thinks border agents should get a warrant before conducting forensic searches of travelers’ cell phones. 

Although the majority of the three-judge panel for the U.S. Court of Appeals for the Eleventh Circuit in U.S. v. Vergara found that border agents did not need a warrant, EFF is encouraged by the dissent’s forceful conclusion that the significant privacy interests people have in their electronic devices require courts to rethink the border search exception to the Fourth Amendment’s warrant requirement.

Vergara had returned to Florida after a vacation in Mexico and was selected by U.S. Customs and Border Protection (CBP) for secondary screening. Border agents performed what is called a “forensic search” of Vergara’s cell phone—the agents used an external device and software to analyze the phone’s data—and found child pornography. Vergara moved to suppress this evidence, arguing that the forensic search violated the Fourth Amendment because it was conducted without a probable cause warrant from a judge.

EFF has long argued that the Supreme Court’s decision in Riley v. California (2014) supports the conclusion that border agents need a warrant, based on probable cause of criminality, before searching electronic devices because of the unprecedented and significant privacy interests travelers have in their digital data. In Riley, the Supreme Court followed similar reasoning and held that police must obtain a warrant to search the cell phone of an arrestee.

More here.

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6 Comments

  1. The United States has already traded privacy for security, the question. Nobody would, nor should protest the morality of the outcome, people who possess child porn should be, with a doubt, prosecuted and incarcerated to the fullest extent the law will allow. The question we have before us is are we willing to sacrifice the privacy of our phones to the government. After all “if we are good men we should have nothing to hide”. If there really is a legitimate uproar behind the case and law (which one could argue there has not been) “we” (citizens of the United States) have the tools and obligation to fix the current legislation. We have a House of Representatives and Senate for a reason, to legislate! The name of the speaker escapes me, but this one quote resurfaces “we have a legislator and they enact something called laws”. The Legislative Branch, both in popular media and textbooks are unfairly characterized as turtles of the United States government. They are shown as We have a private media complex that is separate from the state that can highlight the injustice, and an under appreciated Constitutional right to freedom of speech that at its face criticizes the government. The tools of a democratic republic are our’s feet but we kick them down to one generation after the other hoping that they will solve the problem. This is not an issue of the courts and judges judging “activistly” but instead either a willful ignorance on the part of the public to our system of government or something that we are content with. It is not, necessarily, moral to sacrifice our privacy in the hopes of security, but “we the people” have the power to enact that change. Personally I see nothing wrong here, and I did read through the brief. I am content with our security, but we should remain ever vigilant in policing the men and women that police us at the ballet-box and analyze the case briefs that come out of the judiciary branch. One’s lack of enthusiasm for the branches of government is understandable as nothing about administrations or bureaucratic side in general is inherently attractive (except those that are power mad) but it is necessary to be good informed citizens and understand the debt and weight of the government that tries to protect us.

  2. The United States has already traded privacy for security, the question. Nobody would, nor should protest the morality of the outcome, people who possess child porn should be, with a doubt, prosecuted and incarcerated to the fullest extent the law will allow. The question we have before us is are we willing to sacrifice the privacy of our phones to the government. After all “if we are good men we should have nothing to hide.” If there is a legitimate uproar behind the case and law (which one could argue there has not been) “we” (citizens of the United States) have the tools and obligation to fix the current legislation. We have a House of Representatives and Senate for a reason, to legislate! The name of the speaker escapes me, but this one quote resurfaces “we have a legislator, and they enact something called laws.” The Legislative Branch, both in popular media and textbooks are unfairly characterized as turtles of the United States government. They are shown as We have a private media complex that is separate from the state that can highlight the injustice and an underappreciated Constitutional right to freedom of speech that on its face criticizes the government. The tools of a democratic republic are our’s feet, but we kick them down to one generation after the other hoping that they will solve the problem. This is not an issue of the courts and judges judging “actively” but instead either willful ignorance on the part of the public to our system of government or something that we are content with having. It is not, necessarily, moral to sacrifice our privacy in the hopes of security, but “we the people” have the power to enact that change. Personally, I see nothing wrong here, and I did read the brief. I am content with our security, but we should remain ever vigilant in policing the men and women that police us at the ballot-box and analyze the case briefs that come out of the judiciary branch. One’s lack of enthusiasm for the branches of government is understandable as nothing about administrations or bureaucratic side, in general, is inherently attractive (except those that are power mad), but it is necessary to be well-informed citizens and understand the debt and weight of the government that tries to protect us.

  3. The position of this case is somewhat confusing being that our digital rights are being violated if we were to enter and exit the country; yet if we are subjected to in depth strip searches at the airport, particularly with traveling in and out of the country, aren’t we already reluctantly agreeing to be searched without a warrant? In this case, a man who was travelling back into the United States was strip searched and had his devices digitally screened by security. With this, the man was found guilty of having possession of child pornography on his cellular device. Had no illegal information been found on his cellular device, this case would not have occurred and the issue of the position would not have been raised.
    Privacy is an incredibly important aspect of our lives, yet many companies and even the government are capable of accessing all of our personal data without our knowledge or consent. For all we know, our social media and other digital accounts are being screened by an individual or external software at this very minute. With the Fourth Amendment, we are given the right to protection and can only be searched with a warrant, yet this amendment is not exactly applicable under the terms of airport security searches. Had events such as 9/11 and the Pentagon, travelers would not be subjected to these security checkpoints at the airport. We unfortunately no longer have that luxury of being able to board a plane without your belongings being gone through. Even checked bags get thoroughly searched and you will not be aware that your bag was searched until you open at your destination. Those searches in particular without consent of the owner of the bag being that it occurs after your drop off your checked bag.
    Personally, I agree that we should be digitally screened if we are selected for a more in depth pat-down at the airport. Most would agree that pat-downs at the airport can be incredibly uncomfortable, yet it is a mandatory practice that the airport must utilize in order to keep air travel safe for all individuals. If we are already being stripped searched and having our belongings gone through, what is the difference if our phones are searched as well? In this case mentioned in the article, the man was caught doing something highly illegal and had he not been selected for the strip search at the airport, he would not have gotten caught for the heinous crime he committed. Therefore if we are already surrendering our rights at the airport to be strip searched, it makes no difference that our phones are being digitally screened as well.

  4. Throughout the period of the previous election, illegal immigration has been a hot topic of discussion. There are over 12.4 million illegal immigrants from various different countries from around the world, but the main country of focus is Mexico. That is because illegal immigrants from Mexico make up over 70% of the illegal alien population. (Pew Research Center) What most people seem to confuse when speaking on this topic is the definition of illegal immigration. Illegal immigration is when a person or persons from any country enter a sovereign country and do not go through the legal process in which to do it. In the media, we can see people with a very different view of immigration, and they say the President Trump placing illegal immigration on a pedestal is xenophobic and racist. One must ask how the idea of stopping down illegal immigration is any of those two. If you think about it, it is only the proper thing to do. In other countries from around the globe, illegal, or alien immigration is largely enforced as per that respective country’s policies and guidelines. The American people are frustrated with the fact that people from other countries are coming across our borders and using resources meant for tax paying American citizens. For the large majority of people, it is not a race issue, although blatant racism does exist in today’s society, unfortunately. President Trump plans on reforming the way the United States deals with immigration in general as well as illegal immigrants who are already here. The process in which immigration officials can confiscate your cell phone is beyond absurd. I do not understand how this would help in any way other than the government being a large entity in the lives of people; controlling their every move. I believe this is the wrong approach to take when tackling the immigration problem of the United States. There are many other methods in which the government could take action in terms of technology, and this is not one of the more efficient ones.

  5. Halfway into a 2nd TID centering around the blatant privacy violations that Facebook has allowed, and after reading several articles on this blog about governments around the world increasing surveillance of their citizens I have not been a hopeful person as of late. I recently began reading George Orwell’s classic “1984” for the second time this year to further stoke my dystopian outlook on the future. Reading this article gave me hope. Somewhere out there in the government, there are still people who respect the right to privacy. This story is merely a silver lining and it could definitely be seen as sad that one judge on a panel of three ruling for what is right is considered a victory. However, in our contemporary hell scape we must take any ray of sunshine we can find.
    The case at the center of this article takes on the question of whether or not border agents need a warrant before searching the phones of travelers. The majority of the 11th circuit ruled that no warrant was necessary, but national hero Jill Pryor dissented. She said that a forensic search of a cell phone needs to be supported by a probable cause warrant. The fourth amendment very obviously guarantees this, but it seems that judges across the country have forgotten this as of late. Pryor cited the Riley v California decision that established the need for a warrant in these instances because of the amount of private information on cellular devices.
    I think that the battle for privacy protections is one that the public will eventually lose. Technological innovations aim to further integrate technology with our bodies and personalities, and ultimately dissolve the divide between us and our technology. As this trend continues, our personal technology will contain more and more private information on us and allowing law enforcement to search without probable cause is nothing short of evil. That being said, courts do not seem that they will recognize this anytime soon and by the time, my generation cycles into judgeships a solid and lasting anti-privacy precedent may already be set. In another blog post earlier this semester, I addressed an article detailing the Supreme Court’s phobia of analytics and technology. With the average age of federal judges nearing the 70s (https://tinyurl.com/yb2hu4ap), this is a trend that is not likely to break for some time now. There are several outliers like Jill Pryor, but I doubt their ability to win this legal battle.

  6. “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety” – Ben Franklin. The United States has been transitioning into an acceptable norm of disregarding an individual’s privacy in exchange for safety. This is proven by the adoption of the Patriot Act in 2001, which allowed the NSA the justification to collect phone records from all carriers without warrant or cause. While the recent court ruling was upheld for warrantless searches of electronic devices at customs, I hope that soon the courts will take another look at this. The purpose of security personnel at the border is for the protection of our citizens. Searches of luggage, body, and personal belongings help deter, prevent, and find illegal contraband. This includes explosives, narcotics, and many more things. The common factor in these things is that they are looking for physical contraband, not digital. This is the protection that is expected by our country. While certain electronic data is illegal (stolen intellectual property, child pornography, improper banking/tax fraud) this is not the focus or mission of the border patrol to stop. This data is borderless and the person possessing the data could use it inside or outside our country the same. Justifying a search upon entry of the country to look for these things is a stretch. The fact that we allow a government agency the autonomy to search electronic devices for contraband that is borderless, without a warrant is absurd. For example, if an individual did have illegal information stored on an electronic device and this information was not discovered at the security inspection of our country, but rather found by an Internet Service Provider (ISP), law enforcement would have to get a warrant to search and seize the person’s device. The information provided by the ISP would create the probable cause needed to obtain the warrant. Probably cause should be established in order to search electronic devices at a border, at least help to the same standard. Air travel already requires people to waive some privacy rights just to travel, such as inspections of luggage and body. What if we allow border agencies to collect DNA or blood samples for testing without a warrant or probable cause, just to see if you match anything in the US DNA Database?

    We have to accept some risk in everything we do. However, giving up our constitutional rights in order to have a sense of safety can be detrimental to our society. I personally am an advocate of weighing on the side on privacy and individual’s rights with these issues. Today there are already too many exceptions to warranted searches such as vehicle exclusionary rule, exigent circumstances, plain view/touch. We have to draw a line in the sand somewhere and stop making exceptions to searches. Border Patrol/Customs should not be searching electronics for contraband unless probable cause exists. Today we store everything in our electronic devices such as personal identifiable information, pictures, and personal documents. Many people even have a bank account and credit card information readily available on their devices. The involuntary release of such sensitive information without any cause not only violates their privacy but creates an information security issue. These are normal people working a job looking at our most sensitive information. If a police officer asked for permission to search your phone at a routine traffic stop, would you allow it? Would you feel that the information you have is still secure? None of us would allow such acts, so it is unreasonable to believe that the border patrol agencies get the free pass to do this without cause. I believe this issue will be addressed by the courts and hopefully reversed to protect society’s rights.

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