is number eighteen or nineteen seventy three united states persons goo search any individual traveling the border including business people who carry sensitive corporate confidential business information and attorneys who carry sense of scientists permission and also privileged information journalists who may carry the source information and all of these individuals would have no recourse under the fourth amendment according to the government's decision and that is not the lesson that the supreme court has provided from how much information as the court explained in writing the story on a cell phone and wondering prieta the digital era what would have been permissible with respect to say a photo album or a diary would reasonable suspicion would it be your position that reasonable suspicion or even probable cause would have been required for a border agent to look through a photo album that is not our position and i think that the supreme court in reilly made clear that the categor decision and likely because the balancing approach that the right of the court took showed that not only was there a quantitative difference in the amount of information that a cell phone could contain there was also a qualitative time going to and check my letters or read a diary or look through photo album so what that is not our position with respect to i don't see that individuals carry across the border with them and i do want to note that in ramsey however the supreme court considered incoming international mail and i the drive with luggage why would they need any additional suspicion to search electronic versions of those things copies and i i don't quite you know when you said  don't i'm not getting that i think the judge revenue that riley provides an answer to that in riley the supreme court acknowledged that according to the search incident to arrest exception if someone had been arrested their papers the such a device if we're talking about a pure just photographs for example i don't think that that issue is before us i understand but you understand you're not answering any of those questions i mean i think if you can't read letters that help to write if you could say digital camera you're talking about one kind i think that's correct your honor but nonetheless i do think that riley for example had mentioned the categories of information that could exist and it didn't hinge its decision on what exactly was so for maybe photos it was the potential for the disaster search and i think certainly digital photographs which at this point with technological advances there's often metadata attached to them i'm not sure that's a justification for treating them categor differently but nonetheless this is a case involving cell phone searches and i think for that reason rightly it teaches us exactly how to do the balancing act and i don't you know i don't think that the search incident to arrest exception is so different from the border such exception in one instance in ramsey the supreme court directly pointed them at it said that they were both historic exception of longstanding and similarly i think the riley court  it's not your fault because you don't know but for some reason you're not you did not you're not getting your yellow light which you should have gotten so you are eating into mr homans time we have to think very very long day to this order even though it's a little disjointed because obviously the fourth amendment issue i think is the key threshold issue and it is the issue that is a political to every international traveler that comes through o'hare and every digital data that was on the that the phone the hard drive or the laptop because of the this was a motion to suppress and then a conditional plea that followed so even during the sentencing proceedings we didn't get into the conference that forensic that's right and i think that once you we start making the comparisons between physical and it's a difficult comparison to make between a digital device and in a physical cavity search or a physical physical search  well they each implicate different privacy concerns one is a physical intrusion another is an intrusion of a of a different nature where you can go your entire history your private lives and what would happen if you are simply during the manual search not during the forensic search is the first image that the border agent pulled up in the phone after compelling my client to provide the password under threat of detaining his phone and taking it to a lab was a photo of him mike lying in bed with another man i mean this is the image that's not a photo album and i think to judge various questions and judge others questions about you know what's the difference we typically don't carry those types of images the photo albums that we would cross in the border of such intimate moments and they would be in a phone that's just the nature of the digital era where their password protected on that device and that photo in the bathroom w digital devices i'm not sure that i can answer this in any other way by doing a comparison which is more intrusive than the other because they're both equally work they're intrusive and different in significant ways and the implicate different constitutional concerns in terms of privacy and in terms of perhaps a physical violation that needs to be supported by reasonable suspicion but why another bricks why should cases it's the reasonableness and we also consider the reasonable expectation of privacy and i think that there in this is also again coming from reilly cases that focus on digital devices there is a different type of special document but it has to be how you have to be making an argument that one has a greater expectation of privacy and good or bad than one does in the integrity of one's body otherwise if you have a similar level of expectation of privacy in the same w i i also think that it's your question about ramsey in the letter again it's not for us right now but i think it brings up an important point also with boyce where i think that when we're considering the key question about whether or not  are our limitations that are placed in this doctrine and i think we need to look closely at its origins in the customs act in the clear language and void in terms of saying that there is a fundamental difference between heav search for a customs search of goods for unpaid customs and duties and then to search for criminal evidence of one's personal papers and effects and this again we have to remind ourselves was a criminal investigation and searched i think that's a very difficult line to draw your honor for several reasons yes one is sacked one is that each of these devices was searched with limitation on the search space for photos and videos doesn't diminish what we consider the substantial privacy invasion is here and plus again the photos and videos that were searched here were extremely revealing to an individual's intimate and personal moment fifteen and i i can only imagine that the technology is advancing such and such a degree right now world we're already behind the i believe in i mean my rebuttal time right now and i'd like to reserve the rest unless there's a follow up question thank  please the court my name is chris french you know represent united states united i want to turn right to the questions that you asked before about the photo albums and the digital cameras i think that's exactly the government's point here look the government's position is the case law is clear that searches such as that require no suspicion whatsoever me if i were a traveler and i were traveling pre digital age and i had my photo album in my luggage there's no question the government's opinion that there was no suspicion required to search for that photo op and then why did the warrant for the second search of the cell phone and other electronic devices why was the border rationale not sufficient to justify the more searching investigation because you know that seems in you're taking in our court now absolutely judge and i think absolutely what the government was out of an abundance of caution i think the argument could be made that that second forensic search could have been done over the border search doctrine however at that point y before you read letters reasonable suspicion might be required so what about that what if you have a diary or letters write the government be able to do without any suspicion yes the government's position here is without any perceived any suspicion whatsoever that bring with all international may only even if not in the person of the traveler yes it is because it's coming into the country well and if you look at the ramsey case that heroin was inside of the metal so is the government  overseas to engage in illicit sexual conduct with minors in countries such as the philippines and that includes while they're over there taking photos of those individuals and bringing them back here as part of the child porn collection which this defendant in fact he did bring back that by the national center of missing and exploited children mean it wasn't a known image which arguably is the inference at least in favor of maybe the kind of took it in they were young asian boys sitting in on a bed focused on the on the have taken it certainly and we know it's not a known image meaning that we can't exclude him so he still included but the point of this operation is for what we saw here travelers who travel overseas to engage in illicit conduct transportation of child pornography i'm trying to get the transportation part absolutely your honor he had all three devices that he carried with him from the philippines into our country across our international border contraband child pornography on you into this country the government has to decide how can this person come in can this property come in this it is it ok to enter our international border stop on the cloud is not being presented for and for at the border rightly pointed out that right you could one put the phone in airplane mode which we've been disconnected from any internet devices and therefore keep anything in the cloud out into and most importantly the traveler has complete control over what they present at the border right so the traveler who knows that my phone might be subject to search just like anybody else who comes into this country can turn their phone off can't put it in airplane mode before they they go to customs can delete items from the phone if they wanted or simply cannot bring a phone if they s put the phone in airplane mode if you were worried about that policy being thought of followed in any particular way you as a passenger can choose to put it in airplane mode turn the phone off so that when the agent powers the phone up during the search it's not connected to the internet therefore there's on the cloud only through an internet connection so if you turn your phone off you can if you disable the ability but access the internet you can the only thing you're presenting at the international border is stop actually stored on the phone which is what always argue is what is exactly subject to the border search because you're presenting yourself and your effects which we have which the supreme court has said requires no suspicion to search at the border so the stuff on the internet on the cloud isn't being presented at the border the contents of a person's cell phone including e mail and financial documents is that distinguishing foreign some way or get the government's position is regardless of the motive of the search at the border as anyone who is coming in to the country at the international border the government has the right to inspect anything that you present that you choose to present to come into this country if you come back from the cayman he decided to put contraband stuff that we provide we don't want in this country he decided i'm going to take the stuff that the united states doesn't want and present it for inspection at our border we said we're going to look at it because we don't want things that we don't hear but in other it but i think that's the purpose because here when you're looking at this balancing test the government has no choice in who it what comes to its border we have to accept and make decisions on who comes of this border criminals or non criminals in what they bring travelers have a choice about what level of privacy that there are there willing to have and be because they can decide at the end of the day even how inconvenient it might be to not bring the phone is that a distinction between the border search and the riley situation i would argue that your honor i would argue it is because put passengers in the court has recognized that at the border it's understood that people have a lesser expectation of privacy because you know you're going to have your item judge is there is no intervening law change that's why we really didn't make the good faith argument below if this court decides for the first time as the only court ever to decide the problem cars are worn is needed now that's going to be the intervening change in the law therefore if this case were sent back we would make the good faith argument but the government's point is riley didn't change the border search exception so we could have really made a good faith argument except as we're doing now sort of anticipatory good faith argument bet that brings a question of why in this particular case i mean these facts we need to drop these difficult minds in the first instance because there was plenty of reasonable suspicion here and no court has held that more than that is required and i would agree in that the court does not need to take on the constitutional issue if it chooses not to because of what your honor just said that there was more than enough reasonable suspicion here which is the high standard that's been required by this court or any court at the board and there are reasons to hold off farm attempting to draw those lines because of the fraught nature of the fourth implicate the fourth amendment because what you say is we all agree there's reasonable suspicion new york that's the high standard it's ever been acquired we don't need to discuss we don't need to address this issue right now and ordinarily we don't write new constitutional rules and we don't have to correct it which is what which was what the defense counsel that is creating a new standard of probable cause and a warrant which has never been required by any court the supreme court this quarter anywhere in this country at the border well even requiring reasonable this court say that no suspicion is required for a search of electronic devices but my point is that we've got two extremes that the defense is asking for a probable cause and warrant requirement you're asking for a no suspicion requirement correct the only other cause not a warrant just reasonable suspicion so even if we were just assume for the sake of argument that that is required we've got that here we don't have to just write it in even that question in order to resolve this particular case that's correct because the suspicion level here was not just the criteria for the operation corporate program which applied to all travelers but there w what would it be if i chose of all the factors i will yeah i want one particular behavior so that the people in this courtroom won't do that judge i think the defendant again the agent who has five years of experience and has examined thousands of passengers coming in and i think when he said that they depended appeared visibly nervous was sweating profusely was shifting his body weight i think that's that's a red flag i think when he found out the defendant answers were inconsistent about hey i stayed with friends over there for the sixty days and he looks in the suitcase and finds all these one night stays at hotels in the philippines i think that's a very big red flag here explain to me why going to a bathroom that's part of their away and i i think with the with the agent testified to at the hearing your honor was in his five years again working at a place he's never seen someone leave the line and go to a different baggage hall to use that to use a different room i could come up with all kinds of reasons why that might have happened again i don't we would never i can't get that you know what he was told to say he was told stand in line he's waiting to be examined and he must i could say that maybe he was dumping evidence that flash drives or or sim cards down the toilet just one of the factors that the agent noticed and he thought it was odd because he's never seen it happen before and  i'd like to pick up on one thread that the court with which i was asking the government about the nature of digital data here which i think really distinguishes west before the court now even contraband is border it can be accessed and viewed in the united states without ever having crossed a physical border which gets to the question that i was trying to ask about how  search each and every device that comes in is in the government's position would actually it's just as easy for individuals to or maybe not easy but individuals can wipe their device send it all to the cloud turn their phones off or even use burner phones and cross the border this is not an exception that is paler to collect that particular type of evidence and i would direct you to judge wilkinson concurrence in the c case about caution and restraint in reaching out to decide unnecessary constitutional questions when there's a narrower ground on which to rest the court's decision especially in an area that's so fraught with national security and border sovereignty concerns as important privacy interests why would we venture into the fourth amendment and we don't have to i understand the issue of constitutional avoided city appreciate the court bringing it up but this is a this is a matter that is ongoing right now what's happening at o'hare right now you know you point out statistics in their brief about how rampant this is and it's not just individuals who are being suspected of criminal wrongdoing completely innocent travelers and again and to bring this back to riley right it was an arrestee we're talking about people even mr one g q who may have been suspected but haven't committed any offenses right now very you may not at all he can't you must spencer the question i think this is different than the rand the classic run example where there wasn't anything that was particularly an objective feelings he was a signal that gave rise to a criminal offense however minor that would give the officers cost a close somebody over regardless if they decided to what we're focusing on are the looking at a case where there's not some type of suspicion giving the threshold standard that of somebody being sweaty you're shifting their weight after a sixteen hour flight giving gore using the wrong bathroom to give cause to to search their digital devices