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Speaker 1: When we go to the airport, we willingly put our belongings,

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Speaker 1: including electronics, on the belt so they can be viewed electronically.

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Speaker 1: We allow transit agents to search through our bags if

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Speaker 1: we're pulled aside, and we even allow a physical path

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Speaker 1: down that's if we want to get on our flights.

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Speaker 1: But is there a difference with cell phones or other

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Speaker 1: electronic devices? The Americans Civil Liberties Union says there is,

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Speaker 1: and it's urging the Fourth Circuit Court of Appeals to

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Speaker 1: require the government to obtain a warrant before agents can

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Speaker 1: search travelers cell phones or other electronic devices at airports.

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Speaker 1: Joining me our George Newhouse, a partner at Denton's and

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Speaker 1: a former federal prosecutor and or incurrent professor at George

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Speaker 1: Washington University Law School, and a former federal prosecutor. So

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Speaker 1: George tell us what happened in this case? Well, Mr

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Speaker 1: call Suits, the defendant Turkish citizen was visiting the United

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Speaker 1: States in two six on a tourist visa, but apparently

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Speaker 1: also had a great interest in exporting a firearm arms

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Speaker 1: from the United States. To do that, of course, requires

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Speaker 1: a license from the State Department because those items around

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Speaker 1: the munitions list. So he was under investigation by federal

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Speaker 1: agents as he was preparing to leave the country. UH.

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Speaker 1: And as he went down the gangway, he was stopped

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Speaker 1: and searched by agents. UM. And of course that's subject

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Speaker 1: to what's called the border exception when you're entering or

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Speaker 1: leaving the United States. UM. That there is a very

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Speaker 1: broad exception, generally to the Fourth Amendment, which allows agents

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Speaker 1: to search your handbag. They pulled out of his cell phone. UH.

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Speaker 1: And of course in his bags which have been checked,

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Speaker 1: were numerous firearms on his cell phone. They did a

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Speaker 1: manual search, which is to say, they will look through

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Speaker 1: his text messages and other information. UM. And then they

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Speaker 1: sent the phone after he was arrested because they discovered

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Speaker 1: the firearms. UH. A week later they discovered using a

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Speaker 1: very extensive technology called cell bright, they basically pulled all

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Speaker 1: the data off his his cell phone. And the issue

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Speaker 1: really was the district court granted the motion to suppress

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Speaker 1: on the basis of a Fourth Amendment violation. The court

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Speaker 1: said that it was okay to do the manual search,

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Speaker 1: but the court ruled that more extensive cause and a

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Speaker 1: warrant would be required before they could basically search the

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Speaker 1: contents of the cell phone, and that's what is now

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Speaker 1: up at the UH for review at at the fourth

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Speaker 1: the fourth Circuit or in what was the argument of

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Speaker 1: the A C l U to the fourth Circuit, So

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Speaker 1: the A f LU was just an amikis In the case,

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Speaker 1: it was mostly the defendant Calls of themself was making

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Speaker 1: the argument, but they argued that a warrant should be

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Speaker 1: required when searching a computer U as it crosses the

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Speaker 1: border for the same reason that a warrant is required

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Speaker 1: when searching a cell phone or computer UH incident to arrest.

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Speaker 1: There was AEEN case called Riley versus California, which said

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Speaker 1: that their special rules for computer, cell phone and searches

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Speaker 1: UH making an arrest. Ordinarily, the government doesn't need a

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Speaker 1: warrant to search someone's pocket when they rest someone, but

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Speaker 1: they do need a warrant to search their cell phones

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Speaker 1: under this case. UH. And the argument of the defendant

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Speaker 1: and the you know you UH in the closes case

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Speaker 1: was that that same reasoning should apply in the border

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Speaker 1: search exception. So maybe the government it doesn't need cause,

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Speaker 1: doesn't need suspicion to h search your physical items, but

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Speaker 1: they should need a warrant to search your cell phone

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Speaker 1: or your physical or your laptop when you cross the border.

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Speaker 1: And George, what was the government's argument. The government relied

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Speaker 1: upon a Ninth Circuit case, Uh that actually we talked

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Speaker 1: about several years ago on the show Us versus Katterman,

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Speaker 1: which involved a similar situation. In this case that the

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Speaker 1: defendant was coming into the United States, as you recall,

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Speaker 1: and the at the border checking point, they took his

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Speaker 1: phone and his computer, uh, and did an extensive search

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Speaker 1: hundreds of miles away from the board or it took

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Speaker 1: weeks um. And the government's position there and here is

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Speaker 1: that at the border, Uh, it's it's an exception to

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Speaker 1: the Fourth Amendment requirement of a warrant. They don't need suspicion,

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Speaker 1: they don't need a warrant. Uh. And there is broad,

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Speaker 1: if indeed unlimited authority, the government argued. And so why

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Speaker 1: this case as important as you have Cotterman um and

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Speaker 1: as uh Mr Professor Kerr points out Riley versus California, Now,

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Speaker 1: the fourteen decision seems to go the other directions of

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Speaker 1: Supreme Court is saying, hey, look, there's something unique about

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Speaker 1: cell phones. The smartphones really tremendous and effort Frankly, your

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Speaker 1: entire life history can be uh wrapped up in these machines.

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Speaker 1: So the real issue is whether the Conterman decision is

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Speaker 1: going to be cut back or in a Judge J.

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Speaker 1: Harvey Wilkinson the thirds that it's unrealistic to expect border

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Speaker 1: agents to be able to have individualized suspicion and to

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Speaker 1: obtain a warrant in every case when there are thousands

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Speaker 1: of people, while Judge Pamela Harris said she's concerned the

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Speaker 1: government could use this unbridled exception to search travelers based

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Speaker 1: on nothing more than a hunch. Which which do you

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Speaker 1: which side do you agree with? Well, I think this

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Speaker 1: case was probably not the best test case for the

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Speaker 1: a c l U to challenge border searches for computers

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Speaker 1: because in this particular case, we had somebody who was

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Speaker 1: as foreign national exiting the US was being stopped for

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Speaker 1: export violations. They searched the phone as part of that, uh,

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Speaker 1: you know, as it's crossing the border at at the airport,

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Speaker 1: and they they stopped, grab the phone and search it,

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Speaker 1: uh looking for evidence of the export violations, and in

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Speaker 1: fact they find key evidence that shows that it was

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Speaker 1: a WOLFL violation. Part of the government's duty to to

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Speaker 1: prove to prove the climb. This was not a great

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Speaker 1: test case for the h l U. This wasn't a

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Speaker 1: case of just the U. S. Citizen who happens to

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Speaker 1: be crossing the border and the government grabbed their machine

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Speaker 1: and look through it and find evidence of you know,

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Speaker 1: some political dissent or something like this. This was the case.

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Speaker 1: It's a pretty clear government interest. Under the cases that

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Speaker 1: are currently existing, it's pretty clear. I think the government wins.

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Speaker 1: The a c l U in the defense were arguing

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Speaker 1: for a pretty significant shift in the law. They may

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Speaker 1: get that shift in the law in from future case.

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Speaker 1: I really doubt they're going to get it here. Well, George,

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Speaker 1: the a c l U has also filed a federal

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Speaker 1: lawsuit on behalf of ten American citizens and a lawful

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Speaker 1: permanent resident who had no criminal record and nothing was found. Uh, well,

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Speaker 1: this what do you think of this case success? And

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Speaker 1: perhaps that case, Well, it's it's it's hard to know

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Speaker 1: whether the individuals in that other case, of course, will

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Speaker 1: be found to have standing. Um uh, But clearly Mrs

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Speaker 1: Coulson's has standing, and I don't think the Supreme Court

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Speaker 1: has ruled on this unusual application of Riley and the

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Speaker 1: U S VERSS condiment situation, which is the extent and

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Speaker 1: breadth of a of a border search. I do agree

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Speaker 1: that the facts aren't the best for the A C

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Speaker 1: l U in this one, in that this guy was

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Speaker 1: you know, pretty much caught red handed. But I could

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Speaker 1: see the Supreme Court because remember all the justices of

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Speaker 1: the Supreme Court. I can assure you have smartphones, They travel,

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Speaker 1: they go in and out of the country, and when

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Speaker 1: justices are able to if you will empathize with individual liberties,

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Speaker 1: that's when they tend to come down on the side

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Speaker 1: of the Fourth Amendments. So I could see if this,

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Speaker 1: particularly this case went up to the Supreme Court, I

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Speaker 1: can see some new law being made that will I predict,

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Speaker 1: imposed some restrictions even at the border with respect to

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Speaker 1: unbridled searches of smartphones. Well, you know we have you

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Speaker 1: on tape, and we know the cell phone cases they

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Speaker 1: are going to be more and more coming. I want

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Speaker 1: to thank you both for being on Bloomberg Law. That's

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Speaker 1: George Newhouse, a partner at Denton's and or in current

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Speaker 1: professor at George Washington University Law School. That's it for

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Speaker 1: the decision of Bloomberg Law. We're back Monday at one

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Speaker 1: pm Wall Street Time, thanks to our producer David Suckerman,

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Speaker 1: our technical director Chris try Comey coming up Bloomberg Markets

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Speaker 1: with Carol Masser and Corey Johnson. Corey ten seconds. What

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Speaker 1: do you have coming? We had a monstrous day of

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Speaker 1: tech learnings. We want to break it down and see

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Speaker 1: whose numbers were real, maybe something that weren't. Oh, sounds

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Speaker 1: very interesting, and follows up on something we did. This

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Speaker 1: is Bloomberg