Fourth Circuit Rules on Forensic Analysis of Smartphones Seized at the Border

Today in United States v. Kolsuz , No. 16-4687, 2018 U.S. App. LEXIS 12147 (4th Cir. May 9, 2018), Judge Pamela Harris of the United States Court of Appeals affirmed a district court decision denying the motion of a defendant to suppress a 900 page report on a forensic analysis of a smartphone. The smartphone was seized from a Turkish national detained at Dulles airport in D.C. who attempted to board a flight while carrying a firearm. The Fourth Circuit agreed with the lower court that the analysis of the phone constituted a border search. The defendant cited the Supreme Court decision, Riley v. California, 134 S. Ct. 2473 (2014), (which held that a search incident to a lawful arrest does not allow for a search of a cell phone) for its position that probable cause, not just reasonable suspicion, is required for a forensic search of cell phone. Judge Harris ruled that custom agents justifiably relied on precedent that no warrant was required, and so declined to rule on whether or not a warrant based on probable cause was required in case like this. She did find that the forensic analysis was a non-routine border search requiring individualized suspicion.

The defendant had an iPhone 6 Plus, that was not password protected. A manual search was first conducted of text messages and phone calls. After Kolsuz was arrested a forensic analysis of the phone was performed at a Homeland Security facility miles from the airport. Judge Harris noted that the manual search of the phone could not have been contested by the defendant, and in fact was not. She compared such a search to a check of a traveler's luggage. She distinguished between basic and advanced searches: "'Basic' searches (like those we term 'manual') are examinations of an electronic device that do not entail the use of external equipment or software and may be conducted without suspicion. 'Advanced' searches (like 'forensic' searches) involve the connection of external equipment to a device - such as the Cellebrite Physical Analyzer used on Kolsuz's phone - in order to review, copy, or analyze its contents . . ." Id. at 30-31.

While Cellebrite Physical Analyzer was used to analyze the phone, it was kept in airplane mode so that it could not access cloud data. The report, which took a month to generate, included a log of the precise GPS coordinates of the phone. Judge Harris ruled that a forensic search at a later time, or in a different physical location, can still come under the border search exception, and "[b]ecause the forensic search of Kolsuz's phone was conducted at least in part to uncover information about an ongoing transnational crime . . . it 'fits within the core of the rationale' underlying the border search exception. " Kolsuz, 2018 U.S. App. LEXIS 12147, at *23.

Individualized suspicion is required for a forensic search because, "[t]he sheer quantity of data stored on smartphones and other digital devices dwarfs the amount of personal information that can be carried over a border - and thus subjected to a routine border search- in luggage or a car." Id. at 25. Judge Harris noted that it is not reasonable to expect a traveler to leave their smartphones at home when they travel.

In a concurrence, Judge Wilkinson criticized the majority opinion for holding that individualized suspicion is required for non-routine border search. He asserted that it is the role of Congress, not the courts to set such a standard.