US border agents must get warrant before cell phone searches, federal court rules

A federal district court in New York has ruled that U.S. border agents must obtain a warrant before searching the electronic devices of Americans and international travelers crossing the U.S. border.

The ruling on July 24 is the latest court opinion to upend the U.S. government’s long-standing legal argument, which asserts that federal border agents should be allowed to access the devices of travelers at ports of entry, like airports, seaports and land borders, without a court-approved warrant.

Civil liberties groups who advocated for the ruling praised the judgment. 

“The ruling makes clear that border agents need a warrant before they can access what the Supreme Court has called ‘a window into a person’s life,’” Scott Wilkens, senior counsel at the Knight First Amendment Institute, one of the groups that filed in the case, said in a press release Friday.

The district court’s ruling takes effect across the U.S. Eastern District of New York, which includes New York City-area airports like John F. Kennedy International Airport, one of the largest transportation hubs in the United States. 

A spokesperson for U.S. Customs and Border Protection (CBP), the agency responsible for border security, said it was “reviewing” the court’s decision. “CBP cannot comment on pending criminal cases, and will continue performing its vital national security mission consistent with law and policy,” said CBP spokesperson Justin Long.

The court ruling regards a criminal case involving Kurbonali Sultanov, a U.S. citizen whose phone was taken by border agents at JFK Airport in 2022 and told to provide his password, which Sultanov did when officers told him that he had no choice. Sultanov later moved to suppress the evidence — alleged to be child sexual abuse material — taken from his phone by arguing that the search violated his Fourth Amendment rights. 

The U.S. border is a legally fuzzy space, where international travelers have almost no right to privacy and where Americans can also face intrusive searches. The U.S. government asserts unique powers and authorities at the border, such as conducting device searches without a warrant, which law enforcement cannot normally use against someone who had crossed onto U.S. soil without first convincing a judge of enough suspicion to justify the search.

Critics have for years argued that these searches are unconstitutional and violate the Fourth Amendment, which protects against unwarranted searches and seizures of a person’s electronic devices. 

In this court ruling, the judge relied in part on an amicus brief filed on the defendant’s behalf that argued the unwarranted border searches also violate the First Amendment on grounds of presenting an “unduly high” risk of a chilling effect on press activities and journalists crossing the border.

The judge in the case quoted the amicus brief, filed by the Knight First Amendment Institute at Columbia University and the Reporters Committee for Freedom of the Press, adding that the court “also shares [the groups’] concerns about the effect of warrantless searches of electronic devices at the border on other freedoms protected by the First Amendment — the freedoms of speech, religion, and association.”

The judge said that had the court sided with the government’s argument that device searches at the border do not require any suspicion, “the targets of political opposition (or their colleagues, friends, or families) would only need to travel once through an international airport for the government to gain unfettered access to the most ‘intimate window into a person’s life,’” the latter quoting an earlier U.S. Supreme Court ruling on cell phone privacy. 

While the court ruled that the warrantless search of Sultanov’s phone was unconstitutional, the court concluded that the government had acted in good faith at the time of the search and dismissed Sultanov’s motion to suppress the evidence from his phone.

It’s not yet known if federal prosecutors will appeal the decision to the U.S. Court of Appeals for the Second Circuit, which includes New York.

According to CBP’s own data, the federal border agency conducted more than 41,700 device searches of international travelers during 2023.

Lawmakers have long tried to seal the border search loophole by crafting legislation aimed at requiring U.S. law enforcement officials to obtain a warrant for device searches at the border. The bipartisan legislation ultimately failed, but lawmakers have not given up on ending the practice altogether. 

With several federal courts ruling on border searches in recent years, the issue of their legality is likely to end up before the Supreme Court, unless lawmakers act sooner.

Read more on TechCrunch:

Security researcher warns of chilling effect after feds search phone at airportCBP says it’s ‘unrealistic’ for Americans to avoid its license plate surveillanceAnother US visa holder was denied entry over someone else’s messages

Updated with comment from CBP.