Court asked to decide whether to limit electronics searches

RICHMOND, Va. -- The American Civil Liberties Union urged a federal appeals court Thursday to require the government to obtain a warrant before agents can search travelers' cellphones or other electronic devices at airports.

The 4th U.S. Circuit Court of Appeals heard arguments in the case of Hamza Kolsuz, a Turkish national who was convicted of trying to illegally smuggle weapons parts to Turkey. Evidence from a forensic search of his cellphone was used at his trial.

The Fourth Amendment requires law enforcement to obtain warrants based on probable cause. But courts have made an exception for searches at airports and U.S. ports of entry, finding that the government can conduct warrantless border searches to protect national security, prevent transnational crime and enforce immigration and customs laws.

Esha Bhandari, a staff attorney for the ACLU, urged the 3-judge panel to require a warrant or at least a determination of probable cause that evidence of an alleged crime is contained on an electronic device before it can be searched. She said to rule otherwise "would allow the government to treat the border like a dragnet."

Jeffrey Smith, a Justice Department lawyer, said no court has found that border searches of electronic devices require a warrant.

"The strong government interests have long been found to outweigh the privacy interests," he said.

Judge J. Harvie Wilkinson III said it's unrealistic to expect border agents to be able to have "individualized suspicion" and to obtain a warrant in every case when there are thousands of people who come in and out of the country every day.

"I think that a world of perfect security and perfect privacy is not going to be ours," he said.

"It's going to be virtually an impossible standard given the volume," he added.

Judge Pamela Harris said she is concerned that the government could use "this unbridled exception" to search travelers based on nothing more than a hunch.

The three-judge panel did not immediately issue a ruling.

Wilkinson questioned whether Kolsuz's case was a good one to decide whether warrantless searches at the border are unconstitutional. Authorities said Kolsuz had tried to smuggle weapons parts out of the U.S. twice earlier.

During a third attempt in 2016, agents found weapons parts in his luggage. After he was arrested, the government conducted a forensic search of his phone.

During his trial, Kolsuz filed a motion to suppress evidence from his phone, arguing that the search violated the Fourth Amendment. A U.S. District Court judge denied the motion, finding that the search of his phone's contents was part of a lawful border search.

Civil libertarians and privacy advocates have become increasingly concerned about border searches as the number of such searches climb.

In the 2015 fiscal year, Customs and Border Protection searched the electronic devices of 8,503 international travelers. That number jumped to 19,033 the following year.

The government has said the number of such searches represents only a tiny fraction of the millions of international travelers.

Last month, the ACLU filed a federal lawsuit claiming the warrantless border searches are unconstitutional because of the vast amount of private personal and business information stored on cellphones, laptops and other electronic devices.

The lawsuit was filed on behalf of 10 American citizens and a lawful permanent resident who all had their electronic devices searched by border agents when they returned from trips abroad. None of them had ever been accused of any wrongdoing.