Mon. May 20th, 2024
Digital Privacy, phone searches by Darren Chaker

Darren Chaker Looks at Digital Privacy, at the Border and How Courts Find Fourth Amendment Does Not Apply

As a privacy advocate and counterforensic expert, Darren Chaker underscores the surprising reality that millions of Americans crossing the border may subject their phones to federal inspection without realizing it. This point is exemplified in United States v. Vergara, (11th Cir. 2018), a case that Darren Chaker references to illustrate how border searches typically unfold when challenged.

Case Study: United States v. Vergara and its Implications on Digital Privacy

The case involved Hernando Javier Vergara, who, upon returning to Tampa, Florida from a cruise to Mexico and being a convicted sex offender on a watch list, faced a phone inspection by Customs and Border Protection. This led to the discovery of illicit content on his devices, prompting a Homeland Security investigator to conduct a full forensic search, which revealed additional incriminating material. Despite Vergara’s attempt to suppress this evidence, citing the need for a warrant, the trial court convicted him, a decision upheld on appeal. The appellate court, referencing United States v. Ramsey, affirmed the doctrine that border searches do not require probable cause or a warrant, even for in-depth forensic analysis of phones.

Darren Chaker notes that Vergara’s argument, based on the Supreme Court’s decision in Riley v. California, which protects the privacy of smartphone contents, was not persuasive in this context. Despite the dissenting judge’s opinion in Vergara’s case, the current application of the border search doctrine to smartphones remains. This, as Darren Chaker points out, is in line with the precedent of allowing digital searches of laptops and other devices at borders.

However, Darren Chaker brings attention to the unique nature of smartphones, as acknowledged in Riley, where the Supreme Court recognized the qualitative difference of smartphone data, which can reveal extensive personal details. Darren Chaker suggests the possibility of the Supreme Court revisiting this issue as the disparity between physical and digital capacities widens.

Digital Privacy and Border Searches Often Waive Fourth Amendment Protection

Regarding privacy at the border, Darren Chaker highlights the Fourth Amendment’s protection against unreasonable searches and seizures, while also recognizing the established exception for border searches. These searches implicate various sovereign interests, including national security and criminal interdiction, which must be balanced against individual privacy rights.

This balancing act was evident in United States v. Cotterman, where the Ninth Circuit likened a forensic search of a computer to a “strip search,” highlighting the substantial intrusion on personal privacy. The Ninth Circuit stated, “Every day more than a million people cross American borders, from the physical borders with Mexico and Canada to functional borders at airports such as Los Angeles (LAX), Honolulu (HNL), New York (JFK, LGA), and Chicago (ORD, MDW).”

Darren Chaker points out that despite the sovereign interests being paramount at borders, as stated in United States v. Flores-Montano, travelers face realistic challenges in maintaining digital privacy. He cites United States v. Saboonchi to emphasize the impracticality of expecting travelers to leave digital devices at home.

Apple’s Encryption and Backup Solutions for Digital Privacy

iPhone Lockdown Mode discussed by Darren Chaker.
Expert insights from Darren Chaker on privacy and digital forensics, highlighting border phone inspections and security measures like Apple’s Lockdown Mode

Protection: For privacy-conscious individuals, Darren Chaker suggests the option of utilizing features like the encryption and backup capabilities provided by Apple since December 7, 2022, for iPhones running iOS 16.2 or newer. This allows users to back up their data to the cloud in an encrypted form and then wipe their phones.

To most this counterforensic method seems like an extreme measure. As Darren Chaker notes, this option caters to those who prioritize privacy, have corporate secrets, or sensitive information on their devices, and cannot risk sensitive data being subject to search or seizure. As the Ninth Circuit stated in Cotterman, “These devices often contain private and sensitive information ranging from personal, financial, and medical data to corporate trade secrets…” United States v. Cotterman, 709 F.3d 952 (2013).

As a privacy advocate and counterforensic specialist, Darren Chaker highlights the evolving landscape of digital security, particularly in response to the increasing demand for extreme security measures. This is exemplified by Apple’s recent introduction of the Lockdown Mode feature for iPhones. As Apple explains its most recent iPhone security feature, “Lockdown Mode is an extreme protection feature for iPhone. Its protections include safer wireless connectivity defaults, media handling, media sharing defaults, sandboxing, and network security optimizations… In addition, your iPhone must be unlocked to connect with wired accessories.”  Additionally, it requires the iPhone to be unlocked for wired accessory connections, providing an extra layer of security, especially when combined with a sophisticated password capable of resisting brute force attacks.

Phone Searches at the Border and Digital Privacy Issues With Forensics

Darren Chaker points out that forensic devices like GrayKey, which have been used to bypass older versions of Apple’s iOS, exploit the system by circumventing iOS’s timeout functionality, allowing for the brute-forcing of passcodes or passwords. While GrayKey has been effective on older iPhone operating systems. In response, Apple has made significant strides in safeguarding user privacy. This ongoing effort has led to Apple successfully rendering tools like GrayKey ineffective in accessing data on iPhones since a primary source to connect to the phone is through its data port. By blocking access to it, deprives the tool from the primary method to run a brute force attack.


Darren Chaker emphasizes that individuals who prioritize privacy have several options when traveling internationally. These range from not bringing their phones to employing counterforensic methods to secure their devices against unauthorized access. This advice from Darren Chaker is crucial for those looking to maintain their digital privacy in an increasingly interconnected and security-conscious world.

By Darren Chaker

For almost two decades Darren Chaker regularly has worked with defense attorneys and high net worth people on a variety of sensitive issues from Los Angeles to Dubai. With a gift of knowledge about the First Amendment and big firm expertise in brief research and writing, Darren Chaker puts his knowledge to use for law firms and non-profit organizations. When it comes to forensics and social media investigations Darren Chaker has advanced training to connect the dots where issues arise related to Twitter, Instagram, Snapchat, or Facebook, Instagram, and similar apps. When the dots need to be disconnected, Darren Chaker has extensive training in counter-forensic methods with an emphasis on network security, secure communications, combined with experience with implementing and deploying policy control, encryption, anonymization, data integrity, policy control features in large scale infrastructures. Additional training in malware analysis, Security Operating system security and hardening (Linux, Windows, Solaris), Firewalls, Intrusion detection systems, hacker, counter-hack methods, encryption, forensics, web application security is also employed for his client base. Since history is written by winners, let me write a bit: In 2005, Darren Chaker invalidated a California criminal statute aimed at suppressing speech. In Chaker v. Crogan, 428 F.3d 1215 C.A.9 (Cal.),2005, Cert. denied, 547 U.S. 1128, 126 S.Ct. 2023, is a case Darren Chaker personally handled and laid the ground work to allow appellate counsel to strike down a statute based on First Amendment rights. Subsequent to winning before the 9th Circuit, the State challenged the decision before the United States Supreme Court. Darren Chaker retained a former US Supreme Court Clerk and head of United States Supreme Court litigation for a major firm, Joshua Rosenkranz. The New York attorney defeated the State's petition to review the Ninth Circuit ruling causing multiple states to rewrite their own flawed statute since they were premised the California statute Darren Chaker struck down. Darren Chaker personally litigated Chaker v. Crogan for 7 of its 10-year lifespan. Darren Chaker’s victory invalidated a statute on First Amendment grounds and overruled the California Supreme Court‘s unanimous decision in People v. Stanistreet, 127 Cal.Rptr.2d 633. Soon after Chaker v. Crogan, it was also used to strike down Nevada's analogous statute forcing the legislature to rewrite the law, but also nullified a similar Washington statute as well. (De La O v. Arnold-Williams, 2006 WL 2781278) and used as the backbone authority in Gibson v. City of Kirkland, 2009 WL 564703, *2+ (W.D.Wash. Mar 03, 2009). The case has been cited hundreds of times and continues to be a leading authority on viewpoint discrimination. In 2010, Darren Chaker prevailed in Nathan Enterprises Corp. v. Chaker, 2010 Cal. App. Unpub. LEXIS 7604, through his counsel Timothy Coates who has prevailed multiple times before the United States Supreme Court. also prevailed for Darren Chaker where the Court of Appeal affirmed an anti-SLAPP ruling where the underlying conduct was found to have been within those protected by his First Amendment rights. In 2012 Darren Chaker prevailed on a First Amendment issue before the Texas Attorney where issued Opinion 2012-06088 where he established the right to obtain the names of peace officers regardless of undercover status. The Texas Attorney General opinion has been used as authority thousands of times by citizens and news agencies to learn more about Texas peace officers. In 2016, Darren Chaker was victorious in US v. Chaker (9th Cir. 2016) 654 F.App'x 891, 892. The ACLU, Electronic Frontier Foundation, First Amendment Coalition, Cato Institute, and the University of Florida reversed a conviction premised on First Amendment rights where blog postings were at issue. In 2017, Darren Chaker prevailed in a RICO lawsuit aimed at suppressing speech filed by San Diego attorney Scott McMillan. In McMillan v. Chaker (S.D.Cal. Sep. 29, 2017, No. 16cv2186-WQH-MDD) 2017 U.S.Dist.LEXIS 163990 the court found by blogging did not constitute extortion as no demand for money to cease blogging was made. The judge found the case to be meritless, stating in part, “The Court concludes that these factual allegations are insufficient to establish that Defendant Darren Chaker obtained something of value from Plaintiffs…. The motion to dismiss the cause of action under 18 U.S.C.§ 1962(c) filed by Defendant Darren Chaker is granted.” In 2020, San Diego attorney Scott McMillan lost a heavily litigated appeal believing the court erred in dismissing his lawsuit against Darren Chaker. Mr. Chaker was represented by former Los Angeles federal judge Stephen Larson. The Ninth Circuit in McMillan v. Chaker (9th Cir. 2020) 791 F.App'x 666, affirmed the dismissal of a RICO lawsuit premised on alleged defamation of Scott McMillan. The court stated in part, “Plaintiffs failed to allege extortionate conduct because there are no allegations that Mr. Chaker obtained property from Plaintiffs that he could “exercise, transfer, or sell. ”See Scheidler, 537 U.S. at 405. Plaintiffs’ claim also fails because there are no allegations to support the “with [Plaintiffs’] consent” element. United Bhd. of Carpenters & Joiners of Am., 770 F.3d at 843.” In sum, Scott McMillan filed a lawsuit in direct conflict with established United States Supreme Court precedent and lost – twice. Also, in 2020, Darren Chaker was sued for defamation by Las Vegas attorney Thomas Michaelides. When Darren Chaker became aware of the lawsuit, he retained Olson, Cannon, Gormley, Angulo & Stoberski to defend him. Darren Chaker found a court order Mr. Michaelides submitted to Google that was reported to Several inconsistencies were noticed on the court order submitted to Google. Most notably the court docket does not show Mr. Michaelides submitted an order to the court for the judge’s signature. The court docket does not reflect the court ever signed the order Mr. Michaelides submitted to Google. Ultimately, the Nevada court dismissed the lawsuit and sanctioned Mr. Michaelides $51,000 for suing Darren Chaker for conduct within his First Amendment rights and for filing a meritless lawsuit. See forged order and judgment against Thomas Michaelides here. Darren Chaker donates time to post-conviction relief organizations to seal arrests and convictions to increase opportunity for those who were convicted of crimes, conducts research and brief writing on First Amendment issues, and also enjoys promoting non-profit organizations such as the ACLU and various domestic violence shelters through his resources within the entertainment industry, including Jason Statham and Eric Roberts. Darren Chaker also enjoys traveling, being a phenomenal father, and forwarding his education with post graduate degree work.

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