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May 9, 2018

Today, the Fourth Circuit Court of Appeals issued a decision in US v. Kolsuz, a criminal appeal raising the question of how the Fourth Amendment applies to searches of electronic devices at the border. The Court rules that in light of the immense privacy concerns, forensic searches of electronic devices seized at the border must be justified by individualized suspicion, or some reason to believe that a particular traveler had committed a crime. The ACLU of Virginia joined the ACLU National, ACLU of Maryland, ACLU of North Carolina, ACLU of South Carolina, and ACLU of West Virginia to file an amicus brief argueing that the Fourth Circuit should establish a clear standard for searches of electronic devices at the border. The following statement can be attributed to ACLU of Virginia Executive Director Claire Gastañaga:

"The ACLU of Virginia is pleased that the appeals court recognized correctly that border agents can’t conduct invasive searches on a traveler’s cell phone or other electronic devices just because the person is crossing the border. The court held that, because of the tremendous privacy harm involved, border agents must have individualized suspicion, or some reason to believe that a particular traveler had committed a crime, before conducting such non-routine searches, like taking a cell phone to an off-site location to extract its data. We look forward to the opportunity to build on this win in future cases, including in the ACLU’s pending lawsuit on behalf of 11 people who were subjected to suspicionless searches of their phones and laptops when coming home to the U.S. As we have argued in that and other cases, requiring border agents to get a warrant based on probable cause before conducting such searches is the only way to fully ensure that travelers’ Fourth Amendment rights are not violated just because they find themselves at the border."