US Appeals Court Rules Border Agents Need Suspicion To Search Cellphones (reason.com)

On Thursday, a federal appeals court ruled that U.S. border agents need some sort of reason to believe a traveler has committed a crime before searching their cellphone. Slashdot reader Wrath0fb0b shares an analysis via Reason, written by Fourth Amendment scholar Orin Kerr: Traditionally, searches at the border don't require any suspicion on the theory that the government has a strong sovereign interest in regulating what enters and exits the country. But there is caselaw indicating that some border searches are so invasive that they do require some kind of suspicion. In the new case, Kolsuz (PDF), the Fourth Circuit agrees with the Ninth Circuit that at least some suspicion is required for a forensic search of a cell phone seized at the border. This is important for three reasons. First, the Fourth Circuit requires suspicion for forensic searches of cell phones seized at the border. Second, it clarifies significantly the forensic/manual distinction, which has always been pretty uncertain to me. Third, it leaves open that some suspicion may be required for manual searches, too.

But wait, that's not all. In fact, I don't think it's the most important part of the opinion. The most important part of the opinion comes in a different section, where the Fourth Circuit adds what seems to be a new and important limit on the border search exception: a case-by-case nexus requirement to the government interests that justify the border search exception. Maybe I'm misreading this passage, but it strikes me as doing something quite new and significant. It scrutinizes the border search that occurred to see if the government's cause for searching in this particular case satisfied "a 'nexus' requirement" of showing sufficient connection between the search and "the rationale for the border search exception," requiring a link between the "predicate for the search and the rationale for the border exception." In other words, the Fourth Circuit appears to be requiring the government to identify the border-search-related interest justifying that particular search in order to rely on the border search exception. "The analysis is interesting throughout, and it would be a fairly large limitation on digital searches conducted at the border, both in requiring some articulable suspicion for digital searches and in the requirement to justify the relationship between the search and the border inspection," writes Wrath0fb0b.

Comments

Re:Shouldn't that be...

[Gravis Zero]

I mean, everything else is tacked on to the president... why not this?

right, because you're not the kind of person to pin things on president.

$ for i in $(grep -ic "obama" slashdot/537106/*.html | sed "s/[^:]\+://")
> do
> sum=$(expr ${sum} + ${i})
> done
$ echo $sum
178

Actually the fourth DOES say "reasonable"

[raymorris]

> The 4th Amendment does not provide any exceptions to its rules. Search and Seizure requires a warrant. It does not say except on the border *or except when there is suspicion.*

Here's the exact wording of the fourth amendment, with my comments on each of its two parts:
--
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated
--

The fourth says we have a right to be secure against UNREASONABLE searches. There is a legal principle that if the sign says "No parking on Sundays", that implies that parking is allowed at other times. Otherwise the sign would just say "No parking". When the Constitution says no "unreasonable searches", that means that *reasonable* searches are allowed. Courts have ruled that in order for a search to be reasonable, it must be based on reasonable suspicion.

Whenever I point out what the law says, somebody gets mad at me and starts arguing "so you think ...". I actually didn't write the Constitution, I only read it. Secure "against unreasonable searches" isn't what I think the Constitution SHOULD say, it's what the Constitution DOES say.

If I was writing it today, I might say something more specific than "unreasonable". As it is, it's up to the courts to decide if a search is "reasonable" based on principles laid out by the Supreme Court. Courts have two ways to look the reasonableness of a search. They can determine if a search WAS reasonable based on the circumstances, or if time allows they can rule on whether a particular search of a particular place WILL BE reasonable in the future. The fourth amendment addresses one of those two specifically.

Continuing now with the rest of the fourth amendment:
--
and
--

Just one little word, but it's worth pointing out that the framers wrote AND, not "or", not a comma, not "therefore". The use of "and" means the above is true, and separately the next part is also true.

Continuing:
--
no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized
--

If a court is going to issue a ruling that a future search will be reasonable (a warrant), those requirements must be met. This also gives a hint on how to define "reasonable" when looking at searches that already occurred - they need to have probable cause.

If a person is arrested and put I'm jail, it's reasonable to avoid allowing contraband into the jail by search them during booking. No need for them to spend a day in quarantine waiting for a search warrant that will definitely be issued. Where there is probable cause to believe a person has evidence of a crime AND that evidence will disappear if you let them go and come back tomorrow with a warrant, a search with probable cause may be reasonable. A court can decide whether it was reasonable.

The fourth doesn't say that all searches must be pre-approval, with a warrant. It says they must be reasonable. A warrant is one way of handling the determination of reasonableness.

Here's something that's just my opinion. It's not in the Constitution. I'd like to see better consequences for officers who violate this and other Constitutional rights in a clear way. If an officer knew, or should have known, that their actions violate Constitutional rights, penalties should be imposed on the officer. It should happen regularly enough that officers expect they'll likely get busted if they do that sort of thing, especially if they do it often they'll get busted before long. I also think that courts should continue to be free to disagree with an officer's determination of reasonableness and disallow the evidence, without penalizing the officer if they reasonably thought their actions were okay under the circumstances. Only idiots would become cops if cops go to jail the first time a court disagrees with them on a judgement call. YouTube has plenty of examples of cops who knew they didn't have probable cause, though, or should have known.