The Fourth Amendment still applies at the border, despite the federal government’s claims that it doesn’t apply.
Courts have long held that the government has the right to routinely search the border for contraband without a warrant, and Customs and Border Protection (CBP) has exploited loopholes in the Fourth Amendment’s protections against unreasonable searches and seizures to force travelers to turn over their cell phone and laptop data.
But on Wednesday, Judge Nina Morrison of the Eastern District of New York Domination Cell phone searches are “atypical” searches and are more similar to strip searches than scanning suitcases or putting travelers through metal detectors.
The judge declared that “while the interest of preventing smuggling is undoubtedly satisfied when the government inspects the luggage and pockets of people crossing a border carrying items that could only be brought into the country by physically removing them across the border, the extent to which that interest is satisfied when the government inspects data stored on individuals’ mobile phones”
Morrison noted that “a cell phone search is the best approximation a government agent can make to reading minds,” and that searching cell phone data has even more significant privacy implications than searching physical possessions. Thus, the court found that a cell phone search at the border requires probable cause and and Morrison did not distinguish between scanning the contents of a cell phone with special software and flipping through it manually.
And in a victory for journalists, the judge also explicitly found that cell phone searches violate the First Amendment. Intercept and Vice He noted that the CPB has searched journalists’ cell phones because of their “continuous reporting on politically sensitive issues,” and warned that such searches could put confidential sources at risk.
Wednesday’s ruling joins a growing number of cases limiting federal agents’ ability to search travelers’ electronic devices. The Fourth and Ninth Circuit Courts of Appeals, which cover the mid-Atlantic and Western states, have said the Border Patrol must at least “Reasonable Doubt“Searching a cell phone is a crime,” a judge in the Southern District of New York said last year. It also ruled The government “cannot copy or search the cell phones of American citizens at the border without a warrant, absent an emergency.”
Wednesday’s ruling involves protecting the rights of an unsympathetic person. Kurbonari Sultanov, a U.S. citizen, was placed on a government watch list after he allegedly downloaded a trove of dubious Russian pornography, including several child sexual abuse images. Homeland Security agents summoned him at the airport, searched his phone, and found the images as Sultanov returned from visiting family in Uzbekistan.
Morrison suppressed evidence from the cell phone search, but not Sultanov’s “spontaneous” admission that he had downloaded the videos. And her order would not have prevented police from seizing Sultanov’s cell phone the old-fashioned way: Sultanov had allegedly downloaded pornography while in the U.S., and his name had been put on a watch list two months before his flight home. And, in fact, federal agents obtained a court order to search Sultanov’s spare cell phone.
A ruling last year in the Southern District of New York also involved a character who deserves little sympathy. Bloods gang member Jatiek Smith said:A violent and extortionate takeoverMr Smith, the chief executive of New York’s Fire Mitigation Industries, had just returned from a holiday in Jamaica, and the FBI used the opportunity to search Mr Smith’s cell phone at the border.
The judge dismissed evidence from the cell phone search, but Smith Either way, guilty verdictIn both cases, the federal government could have obtained warrants to seize the suspects’ cellphones, and they believed the border loophole was a way to bypass that step.
Indeed, CBP Agent Marveth Pichard acknowledged that such searches are often warrantless. During the suppression hearing, Pichard testified that CBP will search a US citizen’s phone if it comes from a “country that is politically challenging right now and that we’re currently conducting intelligence gathering and so on.” He argued that CBP agents “can see pretty much any information that’s stored on the phone” and that passengers are usually “very compliant.”
Because of the government’s alleged powers, civil liberties advocates have weighed in on the Sultanov case. The Knight First Amendment Institute at Columbia University and the Reporters Committee for Freedom of the Press Amicus simple In October 2023, Morrison filed a brief arguing that warrantless cellphone searches pose a “serious threat to the Fourth Amendment right to privacy, as well as the First Amendment rights of the press, speech, and association.” Morrison cited the brief frequently in his rulings.
“Allowing Border Patrol to freely search journalists’ work product and communications every time they cross the border, as the Court has found, poses an intolerable risk to press freedom,” Grayson Clary, staff attorney for the Reporters Committee for Freedom of the Press, said in a statement sent to reporters. “This sweeping opinion provides strong guidance to other courts addressing this issue and makes clear that the Constitution requires a warrant before searching a journalist’s electronic devices.”
