No Fourth Amendment In American Airports?

Authored by M. Walter via AmericanThinker.com,

Do you, as an American citizen, have to hand over your cell phone — along with the access code to open it — upon a (warrantless) demand by a border agent at the airport?

There’s a case grinding through the courts about that right now because one man, a Mr. Sam Tunick, refused.  

Not only did he refuse but he had an app on his phone that triggered its erasure once you keyed in a particular code to open it.  That was the code he gave CBP (Customs and Border Patrol) when they demanded his code to open it.  And then his phone was, indeed, erased right there on the spot, in the hands of the CBP agent.

That’s when CBP got really p***ed off.

According to the reporting on his case, this man was not a criminal.  He was not under suspicion or surveillance for anything, so far as we know. He is not related to Spencer Tunick, an artist who famously creates mass nude photo shoots in public places. He was, in point of fact, a left-wing activist with environmental interests, but, again, without any contact with or prior interest from law enforcement that we know of.

He was just a guy.  Coming home from an international trip (the Dominican Republic.).

You may well be thinking, “A left-wing activist with an erasure code?  Sounds suspicious!”

Let me pause to explain why I don’t think so.

A “right-winger” I know just traveled internationally recently and she traveled with a burner phone to avoid exactly this kind of search in another country.  It was England specifically.  

In England there is no Fourth Amendment and they can search your phone when you land.  They also have no First Amendment and they have terrible censorship laws now.  You can be arrested and jailed for social media posts.  Even some perfectly benign ones, like “Islam is incompatible with Liberty” — that kind of thing.

The Dominican Republic also has no Fourth Amendment and if they simply suspect you have contraband or are engaged in some other illegal activity (so a very wide berth), they have every right to inspect your phone.  Maybe this young man just didn’t want the hassle. Maybe this app was this “left-winger’s” choice instead of a burner, and in the heat of the moment, decided to deploy it once facing our own CPB here in the U.S.

In short, I don’t find it suspicious at all knowing the legal overreach climate we are living in now.  And we certainly can’t be searching American citizens and seizing their devices based on politics alone.  I hope we can all agree on that.

Back to the case:

One attorney, Mike Fox of the Cato Institute characterized Mr. Tunick’s situation this way: “This is new, uncharted territory.”

The Supreme Court has never ruled on your Fourth Amendment rights as they specifically relate to your cell phone at American airports/border crossings.  They have ruled on whether or not your phone is searchable in the interior of the United States and the answer is “no” — not without a warrant.

But somehow an American in an American airport on American soil has to surrender his rights to an American customs agent?  What is this sorcery?

Let’s review the Fourth Amendment, in its entirety:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Supreme Court has ruled on Fourth Amendment exceptions at border crossings, but not cell phones in particular.  That’s why you have to go through customs and scanners and open your luggage, etc.  We’ve all been doing it forever without a thought.

But your phone ought to be a separate matter entirely, containing as it does, your digital “papers and effects.”  According to the available reporting, there was no “probable cause” to search Mr. Tunick. CPB wasn’t looking for anything specific, which is what a warrant would demand.  They just wanted to go out on a scenic drive, seeing what they could see on his phone.

Hell. No.

The Washington Post just published an op-ed about Mr. Tunick’s case entitled “Your privacy rights don’t disappear at the border,” with the sub-headline, “Congress or the courts need to make clear that a smartphone is not a suitcase.”  It was written by Mike Fox, the attorney mentioned above.

Mr. Fox was also quoted in a CNN article on the case and it sums up his position in both pieces pretty well:

“Obstruction means I’m obstructing some type of investigation, and without any type of warrant or even reasonable suspicion of criminal activity, what investigation am I obstructing?”

The definition of “reasonable” and the deployment of the key code erasure seem to be the real sticking points here, but the larger issue of your cell phone privacy absolutely deserves specific adjudication.

One hopes Mr. Tunick isn’t subjected to a crushing ordeal here, but one does hope that his case makes it to The Supreme Court so we can settle this once and for all.  The other option would be for the Hill to act and pass some legislation making a specific carve out specifying the need for warrants for cell phones, but I’m still choking on the jet fumes from them hurrying out of town for six weeks before they could vote on the Save America Act, so them?  Useful?  On this or any other matter?  That strikes me as a fool’s errand.

There’s no magic fairy dust in the soil at American airports. Your Fourth Amendment rights do not defy gravity there. It’s one thing to paw through my underwear looking for explosives;  I think we can all appreciate the safety concern in that, as absurd as it sounds and even though it’s a pain.  It’s entirely another to thumb through my cell phone just for the heck of it.

Get a warrant.