(WIVB) — Federal border protection agents have relied on a 233-year-old doctrine for their authority to search an international traveler’s electronic devices without a warrant.
U.S. Customs and Border Protection said the border search exception is necessary to enforce immigration laws and spot national security threats.
This authority is used sparingly, the agency said, with less than 1% of the millions of annual international travelers being subjected to warrantless searches of their electrical devices, such as cell phones and laptops.
Court cases that have challenged this authority have left behind a legal landscape with conflicting decisions that depend on the type of search agents conducted.
Critics argue that the government is conducting more warrantless searches than ever, and people who did not pose any security threat, if any threat at all, have become victims. Like in October 2016, when border agents seized three cell phones from a Canadian photojournalist.
Indeed, border agents have conducted more searches of electronic devices so far in this fiscal year – 41,974 – than in any of the other previous five years.
Another element that has critics, and at least one lawmaker, on edge is how the data is entered into a central database, where it can be searched for 15 years. Thousands of federal agents have access to this database with “minimal protections against abuse,” one senator recently disclosed.
“I urge you to update Customs and Border Protection’s practices regarding searches of Americans’ phones and electronic devices at the border to focus on suspected criminals and security threats, rather than allowing indiscriminate rifling through Americans’ private records without suspicion of a crime,” Senator Ron Wyden said in a Sept. 15 letter to Chris Magnus, the commissioner of U.S. Customs and Border Protection.
A local high-profile federal case against a former DEA agent underscores the complexity of the issue.
On April 23, 2019, border agents at Baltimore-Washington International Airport searched the cell phones of former DEA agent Joseph Bongiovanni, and his wife, as they returned from vacation from the Dominican Republic.
A grand jury indicted Bongiovanni seven months later, in November 2019, on 11 counts. He is accused of accepting bribes and shielding drug dealers from law enforcement investigations, in a case that prosecutors have linked to Italian Organized Crime.
His attorneys have argued that the evidence agents gleaned from his cell phone should be suppressed because the type of search they conducted required a warrant.
But on Aug. 5, a federal magistrate concluded that while the search of Bongiovanni’s cell phone violated his Fourth Amendment rights, the evidence should not be suppressed because border agents acted in good faith.
“The case illustrates everything that’s wrong with the border search exception to the Fourth Amendment,” said Greg Nojeim, of the Center for Democracy and Technology, which specializes in digital privacy protections.
The Electronic Frontier Foundation and other defenders of civil liberties said the warrantless searches of electronic devices pose a grave threat to civil liberties and chills First-Amendment-protected activities.
“We believe that the Fourth Amendment absolutely should apply at the border,” said Saira Hussain, a staff attorney for the Electronic Frontier Foundation. “The exception cannot be so broad as to allow essentially a fishing expedition by the government.”
Border agents search without warrants
The CBP’s policy to conduct warrantless searches of electronic devices and the controversy surrounded it are not new.
Agents have used the exception for decades.
In 2018, the agency issued a new directive to provide agents with additional guidance for searching, reviewing, and retaining information found on electronic devices.
“These searches are part of CBP’s longstanding practice and are essential to enforcing the law at the U.S. border and to protecting border security,” the directive states. “They help detect evidence relating to terrorism and other national security matters, human and bulk cash smuggling, contraband, and child pornography.”
The directive includes two types of searches: a routine search and a non-routine search.
A routine search gives agents the authority to look through a traveler’s device without a warrant or any reasonable suspicion that the person is a security risk or was involved in a crime. An agent can seize a cell phone and look through information that is stored on it, such as contacts and texts.
A non-routine search is when an agent connects the electronic device to external equipment that pulls off all the data on the device. The directive states that this type of search would require reasonable suspicion of a crime being committed or a national security risk. Agents would need to get supervisory approval to perform an advanced search.
“Just by virtue of you coming across the border, they can do a routine basic search of what they can see with their own eyes and rifle through with their fingers,” said Anthony Rupp, a defense attorney in Buffalo who has several Fourth Amendment cases.
But the problem here, experts and attorneys said, is that the Supreme Court has not definitively decided what a nonroutine search of a cell phone entails.
“What’s very interesting is the exact same sort of search, if it were to take place within the interior of the country, that would not be allowed to happen without a warrant,” Hussain said.
Bongiovanni cell phone search
Federal agents from the Buffalo area asked agents at the Baltimore airport to seize and search Bongiovanni’s phone because the former DEA agent was under investigation for domestic crimes.
Bongiovanni, his wife and stepson, had just returned from a six-day trip to Punta Cana, when officers asked to search their cell phones. The Baltimore agent testified that the Bongiovanni’s agreed to unlock the phones.
Agents attempted a more advanced, non-routine search, but failed.
The Baltimore agent testified that took photographs of texts and contacts in Bongiovanni’s phone, which they deemed was a basic, routine search.
The search resulted in 14 pages of material from Bongiovanni’s phone that was forwarded to Buffalo law enforcement, none of which was contraband or even suggested that he was involved in criminal activity.
Prosecutors argued that no warrant or reasonable suspicion was necessary because the agents conducted a routine search of the cell phones. In addition, they argued that if reasonable suspicion was required, these agents had it because of the lookout placed on Bongiovanni by Buffalo law enforcement.
Bongiovanni’s attorneys argued that the Baltimore agents conducted a more advanced search because they took photographs of some contacts and texts, which goes beyond a basic search of a cell phone.
Federal magistrate Michael J. Roemer agreed with Bongiovanni’s attorneys that the Baltimore agents did violate Bongiovanni’s Fourth Amendment rights because the search “stretched beyond what a traveler would expect to encounter at the border and constituted a significant intrusion upon defendant’s privacy.”
Roemer also disagreed that the agents had any reasonable suspicion to search the phone and said that the nonroutine nature of the search makes Bongiovanni’s case “analogous to others where courts have required reasonable suspicion for searches that went beyond a brief manual search for contraband or obvious evidence of a crime.”
But Roemer did not recommend suppressing the evidence that agents gleaned from Bongiovanni’s phone.
Instead, Roemer said the agents acted in good faith because they relied on binding judicial precedent.
“Indeed, this determination was a close call,” Roemer said. “Thus, given the facts here and the state of the law in this area on April 23, 2019, it cannot be said that officers were acting contrary to binding appellate precedent when they conducted the search of Bongiovanni’s phone.”
James Harrington, one of Bongiovanni’s attorneys, filed an objection to the magistrate’s report and recommendation on the cell phone search. He argued that CBP’s regulation for nonroutine, advanced searches can be conducted in insistences in which there is reasonable suspicion of a crime being committed.
“Based on this regulation, with the finding in [Roemer’s report and recommendation] that there is no reasonable suspicion in Mr. Bongiovanni’s case, there can be no good faith exception,” Harrington said. “The fact that there is a lack of certainty in case law does not affect the stated regulation.”
Critics of the directive said the highest court in the land will eventually have to chime in to remove any doubt on how the exception gets applied by international border agents.
“The courts are a little bit of a mess right now in terms of how they’re viewing this, and it’s different depending on which airport you land into in the country,” said Hussain. “And so, this is something that the Supreme Court eventually will need to figure out.”
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