JOHN KIRIAKOU: Cellphone Seizures & the Courts

We cannot trust that federal agents will just be looking for child pornographers or international drug traffickers when they demand access to our electronics at the border.  

By John Kiriakou
Special to Consortium News

After years of conflicting decisions by federal district courts across the country on whether Customs and Border Protection (CBP) agents can search your cell phone and laptop at ports of entry, the Seventh Circuit Court of Appeals has ruled that, “the routine inspection and search of a traveler’s electronics, or for that matter, any other type of property, at the border may be conducted without a warrant, probable cause, or even individualized suspicion of wrongdoing.”  

In reaching the decision, the court agreed with several other circuit courts, but put itself at odds with others and many (lower) federal district courts around the country. 

The issue moved quickly to the Supreme Court, which upheld the Seventh Circuit’s decision this month.  This is, sadly, despite the fact that the Fourth Circuit ruled earlier this year that “CBP agents need at least reasonable suspicion of a crime to search cell phones” and the Ninth Circuit agreed with that ruling.  

The present case stems from the 2016 arrest of Marcos Mendez at Chicago’s O’Hare International Airport.  Mendez is most certainly not the poster boy for protection of Americans’ civil liberties, but this is the hand that civil libertarians have been dealt in the case. 

Mendez arrived at O’Hare following a trip to Ecuador.  Along with his luggage, he carried a personal cellphone, a work cellphone and a work iPad.  

Because Mendez had been convicted in 2010 on a charge of indecent solicitation of a child, and because he had a history of international travel to countries where there are weak protections for children, CBP agents pulled him aside and searched his belongings. 

Agents used a technology called DOMEX to extract the contents of his phone, where they found thousands of images of child pornography.

Mendez was promptly arrested and charged with multiple counts of possession of child pornography.  His attorneys moved to suppress the photos, arguing that they were illegally obtained in violation of the Fourth Amendment. 

The federal district court for the Northern District of Illinois denied the motion and, in the end, Mendez pleaded guilty to one count of producing child pornography and was sentenced to six years in prison, but he preserved his right to appeal.  The Seventh Circuit now has denied that appeal and the Supreme Court has upheld the conviction.

At first glance, the Circuit Court’s reasoning seems to make some sense.  The Court wrote that, 

“Congress, since the beginning of our government, has granted the Executive plenary authority to conduct routine searches and seizures at the border, without probable cause or a warrant, in order to prevent the introduction of contraband into this country.  This rule is based on the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country.”  

In almost any normal circumstance, I would applaud the arrest, conviction, and imprisonment of a child pornographer.  The country — and our children — are safer with Marcos Mendez in prison.  I can’t imagine that anybody will miss him for the next six years. 

Abuse of Surveillance Power

But that’s not really the point here.  The point is that there is no way that we can trust that our government, in the form of CBP agents, F.B.I. agents, or any other federal “agent,” will solely be on the lookout for child pornographers or international drug traffickers when they demand access to our electronics at the border.  

I travel internationally at least three times a year.  And at least 50 percent of the time I’m pulled into secondary when I return and try to get through U.S. immigration. 

I can only speculate that it is because I have a conviction from more than a decade ago as a result of blowing the whistle on the C.I.A.’s torture program. 

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I always, always refuse to answer CBP’s questions without an attorney present, and my mantra is “you cannot articulate any crime that I might be suspected of having committed and you can’t stop me from reentering my own country.” 

They always eventually relent.  The process has taken as little as 45 minutes and as long as six hours.  It’s a serious pain in the ass. But the principle is worth the inconvenience.  

With that said, never have I been asked to turn over my electronics. That could change now with this new court decision.  

What happens now if the government doesn’t like your political opinions?  Will they take your cellphone or laptop and go through it?  Will they take your texts out of context and then work to build a case against you? 

What if you’ve exchanged privileged communications with your attorney or your doctor or your psychiatrist?  How would that information be protected?  What if you have called an abortion clinic for a consultation? 

What about your communications on apps like Signal or Telegram or Viber that were supposed to be private?  Is nothing sacrosanct?

I recently became aware of a new cellphone available for sale with a “kill switch.”  You literally hit the switch as you are turning the phone over to the CBP and it deletes everything on it.  I think that’s where we’re all headed next. 

After all, if the courts won’t protect us, we have to protect ourselves.

John Kiriakou is a former C.I.A. counterterrorism officer and a former senior investigator with the Senate Foreign Relations Committee. John became the sixth whistleblower indicted by the Obama administration under the Espionage Act — a law designed to punish spies. He served 23 months in prison as a result of his attempts to oppose the Bush administration’s torture program.

The views expressed are solely those of the author and may or may not reflect those of Consortium News.

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