Every time I turn around, there’s another astounding and confounding assault on our rights. This time, it was the Fifth Circuit stepping in to ensure that our right against unreasonable search and seizure stops cold at the border.
On August 15, the Fifth Circuit Court of Appeals handed down a remarkable and scary decision limiting the rights of US citizens coming back into the country. Malik v. DHS. The upshot of the holding: the Department of Homeland Security (DHS) has an unrestricted ability to seize your phone. The DHS can also wipe your phone of all the data, and then keep both the phone and data.
Malik is an immigration lawyer (surprise, surprise) who often travels outside the US. He is a US citizen. Like most of us, he keeps much of his life on his password-protected cell phone. This would include emails and other communications with his 2000+ clients. His cell phone also contained his notes about his clients and their cases and recordings of conversations with them. As you would expect, some of his clients are involved in criminal proceedings. He has numerous cases against the DHS (again, surprise, surprise).
When he returned to Dallas from Costa Rica, he was stopped, and DHS asked him to unlock his phone. Not surprisingly, he refused, telling them he was a lawyer and that his phone had privileged and confidential information on it. Nonplussed, DHS simply took his phone. DHS then sent the phone to a forensic lab that was able to access all the phone’s data. The lab returned the phone and the data to DHS.
A DHS “filter team” then allegedly screened the data for privileged materials (how would they know what was privileged?). DHS then reviewed the rest of the data and returned the phone to Malik some three and a half months after it was taken. The data—privileged and allegedly unprivileged—was retained by DHS. (No reason was given why DHS needed to keep the data).
The Court held that even though the DHS would not agree to delete the data they kept, Malik had standing to assert a claim to force DHS to delete the material. But the Court held that on the merits, Malik had no right to force the DHS to do that.
What the Court said about the merits is scary as hell. The Court did give a nod to the Fourth Amendment of the Constitution. That Amendment says a person has a right “to be secure in their persons, houses, papers, and effects against unreasonable search and seizure.” Based on this language, the Supreme Court unanimously held in 2014 that a person’s cell phone can‘t be seized unless a Judge signs a search warrant. That search warrant must be based upon a showing of probable cause. (Riley v. California). The Court recognized that “a cell phone search would typically expose to the government far more than the most exhaustive search of a house.”
The Fifth Circuit says even though the Fourth Amendment applies to Malik’s situation, its protections are “severely diminished.”
But not at the border. The Fifth Circuit says even though the Fourth Amendment applies to Malik’s situation, its protections are “severely diminished.” That’s because, says the Court, a person’s privacy expectations are reduced by “the tradition of inspections at the border.” Yep, you read that correctly. Because DHS has always trampled on your rights, they can keep doing it.
The Court then went even further. It distinguished between routine and ”non-routine inspections. Routine inspections don’t even require reasonable suspicion of anything. Non-routine inspections don’t require probable cause but only a reasonable suspicion, whatever that is. The Court didn’t bother to define it. The Court also didn’t try to determine whether the DHS could do what it did as part of a routine suspicion. Instead, the Court said “reasonable suspicion” was present to justify everything the DHS did.
The “reasonable suspicion” in Malik’s case? DHS flagged the name Malik in connection with the investigation of an international arms dealer. Never mind that the Malik whose phone was seized was a lawyer who could represent people suspected of a crime. Apparently, that doesn’t matter. If you represent an arms dealer or anyone charged with a crime, that now constitutes “reasonable suspicion. This “reasonable suspicion” allows DHS to seize your phone, search it, and take all the data. And keep the phone and the data apparently for as long as it wants.
The Court did refer to the Riley decision but stated that “sister circuits” had not extended it to border searches. (The cite to the sister circuits’ holding is to another Fifth Circuit case. Maybe the Malik court uses ChatGPT to help find it?). Malik did cite to the Court a lower court deicsion that found Riley applicable to border searches. But rather than analyzing why Riley did not apply, the Court just said too bad. Says the Court, Malik, you didn’t argue the point well enough. (“We would expect a party encouraging us to adopt a new constitutional [theory] to convincingly distinguish adverse authorities” and “to discuss the contours of the doctrine [he] wishes us to adopt… He also has not discussed or analyzed Riley at any length.”)
In other words, Malik raised the issue alright. But he didn’t argue it as vigorously as the Court would like. Wait, once a constitutional argument is presented, isn’t a court supposed to analyze its applicability irrespective of the quality of the argument? If only Malik had had a better lawyer.
Oh, by the way, it turns out the DHS was wrong. They got the wrong person. The Malik they searched had no connection to the arms dealer. If I read this right, if you’re a US citizen returning to this country, then DHS can yank your phone away, wipe the data, and keep it all. All without showing much of anything as a justification, even if their justification is completely wrong.
There will almost always be privileged and confidential material on our phones.
This is problematic for all of us, especially lawyer. There will almost always be privileged and confidential material on our phones. And yes, the DHS claimed they screened the purloined data for privileged material and segregated it (just trust us). This raises the question of how the ‘filter team” could possibly know what was privileged.
Even the fact that an immigration lawyer was targeted is concerning. How certain can we be others at DHS who didn’t review the client information before they segregated to see what they might find? Who can say that what DHS wanted was to see who of Malik’s clients might be here illegally or to find evidence they could use against them?
In any event, whether on the “filter team” or not, DHS personnel reviewed confidential and attorney-client material. This review in and of itself should terrify Malik’s clients. Malik’s clients are entitled to be free of this kind of fear by virtue of the attorney-client privilege. Except at the border.
The mischief that can be done with this holding goes far beyond this case. It should give every lawyer who goes out of the country pause.