May 182019
 
 May 18, 2019  Posted by  Court, Surveillance, U.S.

Saira Hussain and Sophia Cope write:

The U.S. Court of Appeals for the Seventh Circuit in United States v. Wanjiku missed an opportunity to protect travelers’ privacy rights and check the government’s ability to conduct invasive border searches of electronic devices.

EFF, along with the ACLU, filed an amicus brief in the case arguing that the Supreme Court’s decision in Riley v. California (2014) supports the conclusion that border agents need a warrant supported by probable cause 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 in applying the Fourth Amendment and holding that police must obtain a warrant to search the cell phone of an arrestee.

Donald Wanjiku had landed at O’Hare International Airport in Chicago after returning from a trip to the Philippines when he was sent to secondary inspection. Customs agents manually searched his cell phone. They then used forensic software to conduct “preview” searches (i.e., only of allocated space, not deleted files) of his cell phone, external hard drive, and laptop, which uncovered child pornography. He asked the court to suppress the evidence obtained from the warrantless searches of his devices, arguing that the searches violated the Fourth Amendment’s protections against unlawful search and seizure.

The Court’s Ruling

In its ruling, the Seventh Circuit “avoid[ed] entirely the thorny issue of the appropriate level of suspicion required” for border searches of electronic devices. Rather, the court fell back on the good faith exception to the exclusionary rule, holding that agents reasonably relied on prior case law that required, at most, reasonable suspicion for border searches. The court found that border agents had reasonable suspicion to search Wanjiku’s electronic devices because his profile matched their screening criteria, and his behavior prior to the searches and items found in his luggage were suspicious. Accordingly, the Seventh Circuit affirmed the district court’s denial of Wanjiku’s motion to suppress the evidence obtained from the forensic searches of his electronic devices.

The Seventh Circuit only focused on the warrantless forensic searches of Wanjiku’s electronic devices because those were the searches that yielded evidence against him. However, EFF has long argued that both manual and forensic border device searches require a probable cause warrant because the government accesses essentially the same highly personal data. A key difference is that sometimes forensic searches can uncover deleted files, but that is not a material distinction to justify different standards for manual searches.

Additionally, while the Seventh Circuit recognized that the Supreme Court has “recently granted heightened protection to cell phone data” in Riley and Carpenter v. United States (2018), the Seventh Circuit attempted to justify its decision by arguing that “neither case addressed searches at the border where the government’s interests are at their zenith.” However, the Supreme Court has recognized similarities between the border search and the search-incident-to-arrest exceptions to the warrant requirement. Just as the Riley Court found that the fact that there might be “diminished privacy interests does not mean that the Fourth Amendment falls out of the picture entirely” in the case of a search of an arrestee’s cell phone, the government’s interests in immigration and customs enforcement do not negate the extraordinary privacy interests travelers have in their electronic devices.

The Seventh Circuit also suggested that because Riley and Carpenter dealt with cell phones, their reasoning may not be fully applicable to other types of electronic devices, such as hard drives and laptops. The court further seemed to imply that Wanjiku’s privacy interests in his external hard drive and cell phone were lessened because neither the hard drive nor the micro SD card on his cell phone were password-protected or encrypted. We caution against making such distinctions. The Riley Court, in particular, noted that modern cell phones have “immense storage capacit[ies]” that can hold “vast quantities of personal information”—and the same is true of modern hard drives, laptops, and SD cards. All of these devices reveal far more than searches of luggage or an individual ever could.

What Comes Next?

While we would have liked to see the Seventh Circuit go further by expressly requiring a probable cause warrant for all border searches of electronic devices, we are hopeful that our civil case, Alasaad v. Nielsen, will reach this conclusion. The district court already ruled that we had valid claims under the First and Fourth Amendments. We, along with the ACLU, recently filed for summary judgment in that case with new evidence on how border searches of electronic devices unjustifiably invade the privacy of tens of thousands of travelers every year. We expect a hearing before the court in July.

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