Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:00):
So joining us from Pacific Legal Foundation, a wonderful organization.
I have frequent guests from a Pacific Legal Foundation. Pacific
Legal dot Org is Amy Peakoff. And although it would
be a great conversation for another day, I will just
say my son's middle name is Rand, So I know
your last name quite well, and it's pleasure to talk
(00:22):
to you for the first time. And we'll do all
that Rand stuff some other time maybe. But tell us
about your client, Wilmer Chavaria. I hope I'm pronouncing his
last name correctly because this is a fascinating story.
Speaker 2 (00:34):
Yeah. So he is a US citizen. He's been naturalized
since twenty eighteen. He came to the United States first
in two thousand and eight as a college student, and
then he had various legal statuses here in the United
States up until becoming naturalized citizen in twenty eighteen. Throughout
this whole stretch of time, he has been a frequent
(00:56):
international traveler, going back to his native Nicaragua to visit
his mother and other family members. So, the way he
says it, it's been hundreds of trips back and forth
over all these years. And then for the first time
in July of this year, he was stopped in Houston
Intercontinental Airport on the way back from Nicaragua. And even
(01:17):
though you know, he had global entry status, which had
gone you know, he'd gone through an additional layer of betting,
he was stopped and then taken into some sort of
intimidating high security area deep within you know, the building there,
and for hours he endured all sorts of interrogation and intimidation,
(01:40):
the point of which apparently was that the officers and
agents of the US government wanted to have access to
his electronic devices. They took the devices from him fairly quickly.
He didn't have control over those, you know, couldn't even
see what time it was for all these hours that
were passing. But what then they really wanted was the
(02:00):
passwords so that they could access the content on those devices.
And like you and I might be, you know, if
we weren't educated about this at all, we think we
have a Fourth Amendment that protects us in our person's houses,
papers and effects. And so did Wilmer Chavaria. And he
asserted those rights as a reason to refuse the demands
(02:23):
for these passwords, and they basically laughed at him. And
they also said that by asserting what he believed to
be his Fourth Amendment rights, he was somehow inherently suspicious,
and they threatened him with reporting him to the FBI,
that he was going to lose his job, et cetera,
et cetera. And he endured this for hours before he
(02:46):
finally relented and handed over the passwords on the assurance
that those officers would at least not try to access
student data on the laptop. Wilmer is a superintendent of
the Wendiski School District in Vermont, and he was concerned
about the confidentiality of data that was either on the
(03:07):
devices or accessible from the devices, and he wanted assurance
that that would be accessed at least. So they did
go through all the devices. They did it out of
his presence, so they don't know what, you know, Wilmer
doesn't know what they got off the devices, what they
looked at precisely, et cetera. They finally gave it back
to him and let him go, but nearly five hours
had passed during that time.
Speaker 1 (03:30):
The other thing that I believe I read when I
was reading about the case, and I want to ask
you to make a very specific kind of point of
law here, border patrol argues, and I think they have
some basis in law that there is like a border
zone inside you know, as soon as you crossed the
border that theoretically for some number of miles. As odd
(03:53):
as that sames, you have fewer rights than you otherwise would.
Speaker 2 (03:57):
Yes, I mean there is this hundred mile border zone.
And you know, in searches that are happening, say ninety
miles within a border or a coastline of the United States,
those are typically vehicle searches that they can do without
any suspicion whatever. But at courts of entry, when people
are coming in through the airport or even leaving the airport,
(04:18):
they according to their own directives, their own policies, have
the ability to request your devices and the passwords, and
you are obligated, that's their word. They use a word
obligated to hand over these devices. Supposedly, they say, the
traditional so called border search exception encompasses not only the
(04:38):
physical items in your luggage and everything else, but also
the digital contents of these devices.
Speaker 1 (04:44):
Okay, so two questions now for you. Yeah, I'm not
a lawyer, but I like reading a lot of constitutional law,
and you know, reading these things. I'm fascinated by it.
So it seems like you could have at least two arguments.
One is the question of whether this border zone thing
applies a lot more than one hundred miles from the border,
(05:06):
like when you're at customs and border Protection coming into
the country with a passport, is that effectively the border?
So that's one question. Does that apply when you're not
actually near what people normally think of the border? And
then the bigger question, I think is the one you
just raised. Does the Fourth Amendment protect digital information on
a phone or on a laptop the way it might
(05:26):
protect a folder or a book or a notepad.
Speaker 2 (05:31):
Yeah, So as to your first question, I have not
done all the calculations as to whether all of the
airports you know, where these international flights come in fall
within the one hundred miles et cetera. But regardless, if
it is a port of entry where people are arriving
from international flights or departing on international flights, then it
(05:53):
would count for purposes of the authority to search these
devices under the you know, the applicable directives as for
the Fourth Amendment, generally, does it apply to the contents
of the devices? Yes, So you know, persons, houses, papers
and effects. The devices would be effects, the you know,
you know, the contents of them, the documents, the files,
(06:15):
the media, your videos, your photos, whatever, those I think
would count as papers maybe effects in certain circumstances. But yes,
there is a case called Riley versus California, and the
Supreme Court decided in twenty fourteen that the typical search
incident to arrest exception did not apply to the contents
(06:36):
of these devices. Even if you were under arrest, presumably
for a legitimate reason, the police would have to get
a warrant to additionally search the contents of your electronic device.
And part of that, of course, is just the common
sense realization that the things that that exception traditionally applied to,
(06:56):
which is weapons that could be used to harm the
off sir, et cetera, aren't going to be found on
the device. Right. The device doesn't pose that sort of risk,
and only in a marginal circumstance would a destruction of
evidence excuse be applicable, et cetera. Right, So, all the
traditional rationales for the exception didn't apply to the digital
(07:18):
contents of these devices, and so the usual Fourth Amendment presumption,
which is get a warrant would apply.
Speaker 1 (07:24):
So we just have one minute left and we're talking
with amp coll from Pacific Legal Foundation Pacific Legal dot org.
So is your primary claim then that they had no
right to access the digital information on those devices and
that the border exception for the search doesn't apply to
those They could have searched a physical notebook that he had,
(07:46):
but they couldn't search his phone. Is that the claim?
Speaker 2 (07:48):
Well, and then the contents of different papers and stuff
remain to be seen and we're going to be looking
at analogies there. But we do not believe that the
traditional border search exception rationale applies to the contents of
the digital devices, and the rationale of that case Riley
versus California, which I just explained, applies equally to the
traditional border search exception, we think, and they're scholars who
(08:11):
agree with us.
Speaker 1 (08:12):
Okay, last, real quick thing. Is it any part of
your case whether or not they have to have a
legitimate basis to consider him suspicious and to search him
to begin with or is that not part of what
you're arguing.
Speaker 2 (08:26):
So we think that they should have to get a
warrant that reasonable suspicion wouldn't be enough. It is true
that in some jurisdictions currently reasonable suspicion is the standard
for doing a so called basic search on these devices.
But if people want to look into these details more,
if they go to Pacific Legal dot org like you say,
and find out our write up on the Chavarria case,
(08:47):
you'll read more detail about it.
Speaker 1 (08:50):
Amp Coff, attorney at the Pacific Legal Foundation Pacific Legal
dot org. Great to talk to you for the first time.
We'll keep in touch on this case, very interested to
see how it plays out.
Speaker 2 (08:59):
Thank you, Thanks very much.
So joining us from Pacific Legal Foundation, a wonderful organization.
I have frequent guests from a Pacific Legal Foundation. Pacific
Legal dot Org is Amy Peakoff. And although it would
be a great conversation for another day, I will just
say my son's middle name is Rand, So I know
your last name quite well, and it's pleasure to talk
(00:22):
to you for the first time. And we'll do all
that Rand stuff some other time maybe. But tell us
about your client, Wilmer Chavaria. I hope I'm pronouncing his
last name correctly because this is a fascinating story.
Speaker 2 (00:34):
Yeah. So he is a US citizen. He's been naturalized
since twenty eighteen. He came to the United States first
in two thousand and eight as a college student, and
then he had various legal statuses here in the United
States up until becoming naturalized citizen in twenty eighteen. Throughout
this whole stretch of time, he has been a frequent
(00:56):
international traveler, going back to his native Nicaragua to visit
his mother and other family members. So, the way he
says it, it's been hundreds of trips back and forth
over all these years. And then for the first time
in July of this year, he was stopped in Houston
Intercontinental Airport on the way back from Nicaragua. And even
(01:17):
though you know, he had global entry status, which had
gone you know, he'd gone through an additional layer of betting,
he was stopped and then taken into some sort of
intimidating high security area deep within you know, the building there,
and for hours he endured all sorts of interrogation and intimidation,
(01:40):
the point of which apparently was that the officers and
agents of the US government wanted to have access to
his electronic devices. They took the devices from him fairly quickly.
He didn't have control over those, you know, couldn't even
see what time it was for all these hours that
were passing. But what then they really wanted was the
(02:00):
passwords so that they could access the content on those devices.
And like you and I might be, you know, if
we weren't educated about this at all, we think we
have a Fourth Amendment that protects us in our person's houses,
papers and effects. And so did Wilmer Chavaria. And he
asserted those rights as a reason to refuse the demands
(02:23):
for these passwords, and they basically laughed at him. And
they also said that by asserting what he believed to
be his Fourth Amendment rights, he was somehow inherently suspicious,
and they threatened him with reporting him to the FBI,
that he was going to lose his job, et cetera,
et cetera. And he endured this for hours before he
(02:46):
finally relented and handed over the passwords on the assurance
that those officers would at least not try to access
student data on the laptop. Wilmer is a superintendent of
the Wendiski School District in Vermont, and he was concerned
about the confidentiality of data that was either on the
(03:07):
devices or accessible from the devices, and he wanted assurance
that that would be accessed at least. So they did
go through all the devices. They did it out of
his presence, so they don't know what, you know, Wilmer
doesn't know what they got off the devices, what they
looked at precisely, et cetera. They finally gave it back
to him and let him go, but nearly five hours
had passed during that time.
Speaker 1 (03:30):
The other thing that I believe I read when I
was reading about the case, and I want to ask
you to make a very specific kind of point of
law here, border patrol argues, and I think they have
some basis in law that there is like a border
zone inside you know, as soon as you crossed the
border that theoretically for some number of miles. As odd
(03:53):
as that sames, you have fewer rights than you otherwise would.
Speaker 2 (03:57):
Yes, I mean there is this hundred mile border zone.
And you know, in searches that are happening, say ninety
miles within a border or a coastline of the United States,
those are typically vehicle searches that they can do without
any suspicion whatever. But at courts of entry, when people
are coming in through the airport or even leaving the airport,
(04:18):
they according to their own directives, their own policies, have
the ability to request your devices and the passwords, and
you are obligated, that's their word. They use a word
obligated to hand over these devices. Supposedly, they say, the
traditional so called border search exception encompasses not only the
(04:38):
physical items in your luggage and everything else, but also
the digital contents of these devices.
Speaker 1 (04:44):
Okay, so two questions now for you. Yeah, I'm not
a lawyer, but I like reading a lot of constitutional law,
and you know, reading these things. I'm fascinated by it.
So it seems like you could have at least two arguments.
One is the question of whether this border zone thing
applies a lot more than one hundred miles from the border,
(05:06):
like when you're at customs and border Protection coming into
the country with a passport, is that effectively the border?
So that's one question. Does that apply when you're not
actually near what people normally think of the border? And
then the bigger question, I think is the one you
just raised. Does the Fourth Amendment protect digital information on
a phone or on a laptop the way it might
(05:26):
protect a folder or a book or a notepad.
Speaker 2 (05:31):
Yeah, So as to your first question, I have not
done all the calculations as to whether all of the
airports you know, where these international flights come in fall
within the one hundred miles et cetera. But regardless, if
it is a port of entry where people are arriving
from international flights or departing on international flights, then it
(05:53):
would count for purposes of the authority to search these
devices under the you know, the applicable directives as for
the Fourth Amendment, generally, does it apply to the contents
of the devices? Yes, So you know, persons, houses, papers
and effects. The devices would be effects, the you know,
you know, the contents of them, the documents, the files,
(06:15):
the media, your videos, your photos, whatever, those I think
would count as papers maybe effects in certain circumstances. But yes,
there is a case called Riley versus California, and the
Supreme Court decided in twenty fourteen that the typical search
incident to arrest exception did not apply to the contents
(06:36):
of these devices. Even if you were under arrest, presumably
for a legitimate reason, the police would have to get
a warrant to additionally search the contents of your electronic device.
And part of that, of course, is just the common
sense realization that the things that that exception traditionally applied to,
(06:56):
which is weapons that could be used to harm the
off sir, et cetera, aren't going to be found on
the device. Right. The device doesn't pose that sort of risk,
and only in a marginal circumstance would a destruction of
evidence excuse be applicable, et cetera. Right, So, all the
traditional rationales for the exception didn't apply to the digital
(07:18):
contents of these devices, and so the usual Fourth Amendment presumption,
which is get a warrant would apply.
Speaker 1 (07:24):
So we just have one minute left and we're talking
with amp coll from Pacific Legal Foundation Pacific Legal dot org.
So is your primary claim then that they had no
right to access the digital information on those devices and
that the border exception for the search doesn't apply to
those They could have searched a physical notebook that he had,
(07:46):
but they couldn't search his phone. Is that the claim?
Speaker 2 (07:48):
Well, and then the contents of different papers and stuff
remain to be seen and we're going to be looking
at analogies there. But we do not believe that the
traditional border search exception rationale applies to the contents of
the digital devices, and the rationale of that case Riley
versus California, which I just explained, applies equally to the
traditional border search exception, we think, and they're scholars who
(08:11):
agree with us.
Speaker 1 (08:12):
Okay, last, real quick thing. Is it any part of
your case whether or not they have to have a
legitimate basis to consider him suspicious and to search him
to begin with or is that not part of what
you're arguing.
Speaker 2 (08:26):
So we think that they should have to get a
warrant that reasonable suspicion wouldn't be enough. It is true
that in some jurisdictions currently reasonable suspicion is the standard
for doing a so called basic search on these devices.
But if people want to look into these details more,
if they go to Pacific Legal dot org like you say,
and find out our write up on the Chavarria case,
(08:47):
you'll read more detail about it.
Speaker 1 (08:50):
Amp Coff, attorney at the Pacific Legal Foundation Pacific Legal
dot org. Great to talk to you for the first time.
We'll keep in touch on this case, very interested to
see how it plays out.
Speaker 2 (08:59):
Thank you, Thanks very much.
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