Subject To Search

      Subject To Search

      Last year, when a Turkish man was arrested leaving the U.S. with gun parts in his luggage. It seemed like an open and shut case. Prosecutors said that on several occasions he'd tried to traffic dozens of semi-automatic pistol parts. But something the border patrol did -- has privacy advocates up in arms: agents seized and searched the suspect's cell phone without a warrant at the airport. Cause of Action Institute says the warrant-less search has dire implications for all of us. The group's Erica Marshall recently told me why they're challenging the practice in court.

      Erica Marshal: This case is United States vs. Hamza Kolsuz and the case involves a Turkish citizen named Mr. Kolsuz who was arrested at Dulles International Airport in Virginia where he was set to fly back to Istanbul. Customs and Border Patrol agents found handgun parts in his checked luggage. During that arrest, the customs and border patrol agents actually seized his cellphone and at that point, they initiated a month long forensic search of all the data on his cell phone and it ultimately generated a nearly 900 page report detailing all of his text messages, his phone call logs, and his GPS coordinates for the past couple years.

      Sharyl: So what is your objection if he was trying to move gun parts in his luggage unlawfully, isn't it a good thing that we caught him?

      Marshal: Mr. Kolsuz should have definitely been arrested for trying to export those gun parts. The focus of Cause for Action in this case is the actual search of his cellphone that was performed incident to that arrest.

      Sharyl: What is the government's argument for why it had a right to do that?

      Marshal: Anytime you travel into the United States, the government has a limited right to search, for example, your luggage or your car to make sure you're not bringing any contraband in like drugs. And on an outgoing search to make sure you're not taking out any undeclared amounts of currency for example. So the government is saying that it searched the cellphone as part of this narrow right it has to do warrantless searches at the border.

      Sharyl: So you think the government has expanded the intended power to search beyond what it's supposed to be?

      Marshal: Cause of Action believes that once Mr. Kolsuz was arrested, he was no longer crossing the border, his cell phone was no longer crossing the border and at that point, this falls under the traditional 4th amendment rule that you need a warrant to do a search of a cell phone.

      Sharyl: Why should ordinary Americans care about this, ordinary Americans that aren't going to be moving gun parts in their luggage and don't see a problem with this?

      Marshal: That's a great question and the answer is very simple. Under current Department of Homeland Security policy, they proport to have the authority to stop any person, an American or a foreign traveler, who's coming into the United States or leaving the United States, and gain access to any electronic device they are carrying including a laptop, cellphone or tablet or ipad that person has.

      Sharyl: So a traveler here going to visit family members in Europe could be subjected, theoretically, to having their cellphone and computer devices seized and searched?

      Marshal: Yes and it's not just theoretically. There have been so many news reports of late about individuals being stopped at the border, at the airport, the custom agents have been detaining people asking them to provide access by entering a PIN or code for example. At that point if the person doesn't consent to the search, the customs and border patrol agents have essentially said they have the right to seize that device, send it offsite to a complete forensic search and complete imaging of all data on that phone or device, including information that might be available just through the Cloud. It's basically violating the privacy rights of everyday Americans and also the specific rights that certain travelers like business travelers, journalists or lawyers have in protecting confidential information that they often carry on their laptops.

      Cause of Action says Homeland Security searched 5,000 electronic devices this past February.