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United States v. Kolsuz

In this amicus brief, the Brennan Center urges the U.S. Court of Appeals for the Fourth Circuit not to repeat a lower court’s errors in reasoning concerning Fourth Amendment protections for digital data during border searches.

Published: May 25, 2018

United States v. Kolsuz involved the search of an iPhone under the so-called “border search” excep­tion to the Fourth Amend­ment’s prohib­i­tion on warrant­less searches and seizures.

Hamza Kolsuz was arres­ted at Wash­ing­ton Dulles Inter­na­tional Airport on charges of attemp­ted fire­arms smug­gling. Federal customs agents found fire­arms parts in Kolsu­z’s luggage and detained him as he was board­ing a flight to Turkey. The agents took Kolsu­z’s smart phone and subjec­ted it to forensic analysis for almost a month, gener­at­ing an 896-page report. In the trial that followed, the court relied in part on evid­ence from that report to convict Kolsuz of attempt­ing to illeg­ally smuggle fire­arms. Kolsuz moved to suppress the evid­ence that was obtained through the warrant­less search of his phone.

In May 2016, a district court in Virginia ruled that agents could conduct “manual” searches of elec­tronic devices at the border without suspi­cion, but that “reas­on­able suspi­cion” of crim­inal activ­ity is required to conduct more invas­ive “forensic” searches. While the decision was consist­ent with the Ninth Circuit’s approach in United States v. Cotter­man, the Bren­nan Center believed it did not go far enough in light of rapid advances in tech­no­logy and the Supreme Court’s land­mark decision in Riley v. Cali­for­nia, requir­ing a warrant to search a cell phone incid­ent to arrest. 

On appeal to the Fourth Circuit, the Bren­nan Center filed an amicus brief arguing that the border search excep­tion should not apply to digital devices, like an iPhone, and that all such searches should require a warrant based on prob­able cause. Specific­ally, the brief argued that: (1) digital devices contain and access vast quant­it­ies of highly intim­ate inform­a­tion; (2) the border search excep­tion is narrow and does not justify warrant­less searches of digital devices; and (3) all searches of digital devices are “non-routine” and there­fore outside the domain of the border search excep­tion.

The Bren­nan Center filed the brief in conjunc­tion with the Elec­tronic Fron­tier Found­a­tion, Asian Amer­ic­ans Advan­cing Justice-Asian Law Caucus, the Coun­cil on Amer­ican-Islamic Rela­tions (CAIR) and CAIR affil­i­ates in Cali­for­nia, Flor­ida, Missouri, New York, Ohio, and Dallas/Fort Worth, as well as the National Asso­ci­ation of Crim­inal Defense Lawyers.

In May 2018, the Fourth Circuit Court of Appeals ruled that a forensic cell phone search conduc­ted at the border may only be performed upon a show­ing of indi­vidu­al­ized suspi­cion. A forensic search uses soft­ware or hard­ware to search all the content on a device and extract files from it. The court reasoned that based on the Supreme Court’s decision in Riley, a forensic search of a phone is a nonroutine border search that cannot be performed without reas­on­able suspi­cion.

In its ruling, the Fourth Circuit adop­ted the district court’s rationale that there is a distinc­tion between manual and forensic cell phone searches. The district court provided an example based on a border search of a computer and disks in the 2005 Fourth Circuit case United States v. Ickes. In that case, the district court said, agents manu­ally searched the devices “by access­ing their content in the same way a typical user would do so.” By contrast, the border officers here used a device to extract files from Kolsu­z’s phone. The court did not set out a warrant require­ment for forensic searches, as the amici and defend­ant reques­ted; instead, the court created an indi­vidu­al­ized suspi­cion stand­ard, but it declined to rule on whether an offi­cial must show more than reas­on­able suspi­cion to satisfy that stand­ard.

Note: On May 23, 2018, the Elev­enth Circuit split with the Fourth and Ninth Circuits on this issue, ruling in United States v. Touset that the Fourth Amend­ment does not require suspi­cion for forensic searches of elec­tronic devices at the border. 

4th Cir_Kolsuz Opin­ion by The Bren­nan Center for Justice on Scribd

The amicus brief can be found here.

U.S.A v. Kolsuz (Brief of Amici Curiae from EFF, AAAJ-ALC, Bren­nan Ctr, CAIR and CAIR Chapters, and NACDL 3… by The Bren­nan Center for Justice on Scribd