In a victory for privacy rights at the border, the U.S. Court of Appeals for the Fourth Circuit today ruled that forensic searches of electronic devices carried out by border agents without any suspicion that the traveler has committed a crime violate the U.S. Constitution.
The ruling in U.S. v. Kolsuz is the first federal appellate case after the Supreme Court’s seminal decision in Riley v. California (2014) to hold that certain border device searches require individualized suspicion that the traveler is involved in criminal wrongdoing. Two other federal appellate opinions this year—from the Fifth Circuit and Eleventh Circuit—included strong analyses by judges who similarly questioned suspicionless border device searches.
EFF filed an amicus brief in Kolsuz arguing that the Supreme Court’s decision in Riley supports the conclusion that border agents need a probable cause warrant before searching electronic devices—whether manually or with forensic software—because of the unprecedented and significant privacy interests travelers have in their digital data. In Riley, a case that involved manual searches, the Supreme Court followed similar reasoning and held that police must obtain a warrant to search the cell phone of an arrestee.