No Warrant, No Suspicion, No Problem: Flock and Border Cellphone Searches Excluded From 4th Amendment Rules

Cops keep carving out tech exceptions to the Fourth Amendment—and courts are giving them their blessing.

Part of the bedrock of American civil liberties is the Fourth Amendment's prohibition against unreasonable searches. There is no right to privacy, and no due process in the justice system, without that. But immigration authorities, cops, and courts keep deciding that, for some reason, the Fourth Amendment just doesn't apply where new technology is concerned.

Case in point: A federal court just held that authorities searching automated license plate reader systems such as Flock doesn't count as a search for Fourth Amendment purposes.

That means: no warrant necessary. No probable cause necessary. Cops can search Flock networks with "LOL" or "LMAO" as the reason, and it's fine.

Combine this with another recent federal court ruling—this one upholding warrantless and suspicion-free searches of cellphones at the border—and we're making a mockery of the Fourth Amendment, which says that Americans shall not be subject to "unreasonable searches and seizures" of their "persons, houses, papers, and effects." For such a search to be constitutional, authorities must obtain a warrant that's based on probable cause and describes particularly and in advance what is to be searched or seized, the Founders said.

Sure, they didn't have Flock cameras or smartphones when the Constitution was written. But that's no reason to think that the Framers of the Constitution baked in a technology exception to the Fourth Amendment.

Still, that's exactly what law enforcement authorities of all sorts seem to be asserting.

They tried it with phone location data, arguing that "geofence warrants" demanding tech companies turn over information on anyone whose phone was in the vicinity of a crime scene weren't a violation of the Fourth Amendment because obtaining these data didn't count as a "search."

But the Supreme Court held in June that geofence warrants do indeed count as searches "and therefore trigger the Fourth Amendment's safeguards against unreasonable searches and seizures," as Reason's Damon Root pointed out.

That case—Chatrie v. United States—could "trigger a rethinking of how the Fourth Amendment applies to automated license plate reader systems such as those provided by Flock Safety," suggests Stanford law professor Orin S. Kerr (noting that "there was an oral argument in the Eleventh Circuit on this question on July 29 that you can listen to here").

But so far: no dice. In a U.S. District Court for the Central District of California decision released on September 10, Judge Virginia A. Phillips held that automated license plate reader "database queries are not searches within the meaning of the Fourth Amendment."

The case involved Culver City police searching their Flock database for information on cars driven by suspects in two separate abductions and robberies. In cases like these, it can be hard for folks to see the trouble with law enforcement's actions—after all, who wouldn't cheer for cops catching kidnappers?

But cops could still have caught the alleged kidnappers in these cases if they had needed a warrant before searching their Flock databases—this wasn't a case where they were following hot on the trail of a kidnapping in progress. Meanwhile, such a guardrail could prevent them from using Flock to search people for less justifiable reasons.

An even more disturbing Fourth Amendment ruling came from the U.S. Court of Appeals for the 2nd Circuit last week.

This case concerned Customs and Border Protection's assertion that agents can search people's electronic devices—including cellphones, laptops, smartwatches, and much more—and make copies of their contents with no warrant and no reasonable suspicion if the devices belong to people flying into or out of the country at a U.S. airport.

In a September 17 decision, 2nd Circuit judges held that this is perfectly reasonable and therefore does not violate the Fourth Amendment. "No suspicion is required before the government searches a traveler's cellphone at the border," Judge Steven Menashi wrote in the court's decision, nodding to the appeals court's precedents.

I'm with the Institute for Justice's Patrick Jaicomo on this one. "In legal terms, this is 'nuts,'" commented Jaicomo. "Of course a suspicionless search of someone's phone—a tool 'indispensable to participation in modern society'—violates a person's right to be secure in his papers and effects. If precedent leads to a different conclusion, it must be discarded."

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