As mentioned in a prior blog post, the U.S. Customs and Border Protection (CBP) can conduct searches of individuals departing the United States, a fact that many are not aware of.  In fact, the rule that failure to declare monetary instruments in amounts of or over $10,000 can result in its seizure is applicable to departure and CBP has confiscated funds from individuals who did not make the proper declaration as recently as two months ago after conducting an ad hoc inspection in a departure lounge at Newark Liberty Airport.

Well, what if CBP confiscates an I-Phone from an individual about to depart the United States, at an airport, without a warrant, and the individual is convicted of criminal charges partially based upon information obtained from that I-Phone. That is the question raised in U.S. v. Hamza Kolsuz in the U.S. Court of Appeals for the Fourth Circuit.

The Border Search Exception

We discussed in a prior blog post how CBP relies on the “Border Search Exception” cited in Carroll v. United States 267 U.S. 132 (1925) concluding that it is “reasonable” to conduct such border searches without a warrant given national security interests.  In addition, individuals have a lesser expectation of privacy when they seek entry into the United States at a port of entry.

However, the intrusive nature of confiscating a smartphone is quite different, and this issue is addressed with reference to searches in the interior of the United States in Riley v. California, 134 S.Ct. 2473 (2014).  The Court indicated that smart phones are “such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude that they were an important feature of human autonomy.”  The Court found that given how cell phones contained in many instances the digital sum total of one’s “papers and effects,” police searches would be unreasonable unless a warrant had been obtained.

The Hamza Kolsuz case addresses the question whether an end run around the Fourth Amendment can be made when the confiscation takes place at a border, in this case, while the individual was seeking to depart the United States.

In the interim, CBP continues to conduct searches and under appropriate circumstances, confiscate or detains laptops and smart phones as they deem necessary.

In CBP Directive Number 3340-049 dated August 20, 2009 and reviewed August 2012, U.S. Customs and Border Protection outlines its policy with regard to handling sensitive information.

CBP indicates that it might confront “materials that appear to be legal in nature or an individual may assert that certain information is protected by attorney-client or attorney work product privilege.” CBP takes the position that such materials may not necessarily be exempt from a Border search, but consultation with a senior officer may be necessary.

It addresses other sensitive information, such as medical records and work-related information carried by journalists, which should be handled in accordance with any applicable federal law and CBP policy.

It also addresses “business or commercial” information which may be sensitive or governed by the Trade Secrets Act, Privacy Act, and other laws.”

At the end of the day, you will have little opportunity to discuss, debate or persuade while an inspection for admission to the United States is conducted, and you therefore may want to take necessary precautions as we described in our recent blog post.

The litigation in the Hamza case may eventually bring some clarity as CBP will be pressed and challenged as to this very sensitive issue.

The Knight First Amendment Institute of Columbia University went to court to enforce a request under the Freedom of Information Act, to provide statistics and policy records with reference to how many electronic devices CBP had been searched or confiscated at the border.

Finding the right balance between privacy rights and the security needs of the nation will continue at our ports of entry to be an elusive goal.