Donald Trump, Jr. was recently roasted on social media after he posted a video on Instagram showing his three-year-old daughter without a shirt or blouse. The average person viewed the posting as an incident of innocent children and/or classless parenting.
But law enforcement sees the issue of a shirtless child differently, at least the Custom and Border Protection (CBP) agency does. These guardians of the nation’s ports of entry see it as evidence of criminal wrongdoing.
Hernando Javier Vergara learned this when he returned from a cruise to Cozumel, Mexico to his home in Tampa, Florida. He carried three cell phones with him on that trip: a Samsung phone inside a bag in his luggage, an LG phone, and an iPhone. After identifying Vergara, CBP Agent Christopher Ragan searched the man’s luggage whereupon he found the Samsung.
Border Searches of Electronic Devices
The law is clear: the Supreme Court in 1977 in United States v. Ramsey held that border searches “never” require probable cause or a warrant; and the federal circuits have interpreted this to mean that “reasonable suspicion” at the border is only necessary “for highly intrusive searches of a person’s body such as a strip search or an x-ray examination.”
With the discovery of the Samsung, Agent Ragan instructed Vergara to turn the phone on at which time he trolled through it for roughly five minutes. He found a video of two shirtless minors, much like the one Donald Trump, Jr. posted on Instagram.
Suspicious, Agents Ragan called his supervisors at the Department of Homeland Security (DHS). DHS supervisor Terri Botterbusch arrived at the scene. After watching the video and interviewing Vergara, Botterbusch decided to seize all three cellphones to have them forensically examined. The examination, conducted that same day, revealed that two of the phones stored more than 100 images and videos of minors engaged in sexually explicit conduct.
Warrant Not Needed for Border Search
Vergara was arrested and subsequently indicted on two counts of related child pornography offenses. The trial court would rule that Agent Ragan did not need reasonable suspicion to conduct the initial manual search of the Samsung phone and that a warrant was not necessary for DHS to conduct the ensuing forensic searches of all three phones.
Vergara was convicted following a bench trial and given a 96-month prison term followed by a lifetime of supervised release.
Vergara appealed his conviction to the Eleventh Circuit Court of Appeals, and in a sharply divided March 15, 2018 decision, the court upheld his conviction, finding, as had the trial court, that reasonable suspicion was not needed to conduct the Samsung search and a warrant was not necessary to conduct the forensic searches.
Unrestrained border searches of electronic devices without any suspicion, much less reasonable suspicion, of wrongdoing have become an increasing constitutional controversy. As Dickinson Wright pointed in a March 18, 2018 post on Lexology, there are a number of cases percolating in the federal courts dealing with the issue of border cellphone searches. If the Vergara decision is a guide (and it very well may not be for long given logic supporting a 13 page well-reasoned dissent by Judge Jill Pryor in the case), the courts will adhere to the longstanding rule that border searches of electronic devices can be conducted for any reason or no reason at all.
Still, this controversy is not about to go away anytime soon.
Border Searches of Electronic Devices Should be Limited
In September 2017, eleven people filed a civil rights lawsuit against DHS because CBP agents searched, even confiscated, their electronic devices without a warrant. Ms. Wright called attention to a January 4, 2018 directive by CBP titled “Border Search of Electronic Devices,” which said that “border searches of electronic devices” will be limited to “only the information that is resident upon the devices;” that CBP agents will be “prohibited” from accessing “information that is stored remotely.” Ms. Wright explained:
“To avoid access to information stored remotely, officers will either request that the traveler disable network connectivity or, where warranted by national security, law enforcement, officer safety, or other operational circumstances, the officers themselves will disable network connectivity. Thus, there is a ‘basic’ search, which may be conducted without suspicion, and an ‘advanced’ search, which requires officers to have reasonable suspicion of activity in violation of the laws CBP enforces or administers.”
The CBP directive notwithstanding, it should be remembered that the Supreme Court in Ramsey said that border searches “from before the adoption of the Fourth Amendment, have been considered ‘reasonable’ by the single fact that the person or item in question had entered into our country from outside.”
The constitutional takeaway at this time is this: use electronic devices for foreign travel that do not contain any personal or private information, and certainly not even the hint criminal activity, because upon return into this country they can be searched, even confiscated, for any reason CBP determines appropriate or for no reason at all. The Fourth Amendment does not lend a right to privacy to any information on electronic devices reentering the country.