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Warrantless searches of Americans' electronic devices at the US border is a Fourth Amendment violation, a federal judge has ruled.
"Such searches, whether conducted manually or forensically, represent an extraordinary invasion of a traveler's privacy," according to the ruling, which adds that rifling through the contents of someone's cell phone "is the best approximation government officials have for mindreading."
The ruling came last week as part of a 2022 case where Kurbonali Sultanov, a US citizen, was flagged by an internal Homeland Security tracking system at New York's JFK International Airport for being "a possible purchaser or possessor of child sexual abuse material." Four videos of such material were allegedly found on Sultanov's phone after border agents told him he had to divulge his mobile phone's password.
Officers later obtained a warrant for a forensic search, and Sultanov was indicted. He has been fighting to get some of the evidence thrown out in court, given the early, warrantless search.
The Eastern District of New York partly granted the man's requests, finding that inspecting cell phones' contents at the border without a warrant and probable cause violates the US Constitution. The court also said, however, that some of the evidence could stand because it believes the US government acted in good faith.
“As the court recognizes, warrantless searches of electronic devices at the border are an unjustified intrusion into travelers’ private expressions, personal associations, and journalistic endeavors—activities the First and Fourth Amendments were designed to protect,” says Scott Wilkens, senior counsel at the Knight First Amendment Institute, which filed an amicus briefing with the Reporters Committee for Freedom of the Press.
In 2019, a Massachusetts district court ruled that "suspicionless searches" of international travelers’ smartphones and laptops at airports and other US ports of entry violated the Fourth Amendment. But that decision was overturned in 2021, leaving travelers with fewer legal protections from such searches.
Organizations like the American Civil Liberties Union and the Electronic Frontier Foundation have been fighting to protect travelers' privacy rights and stop warrantless searches of electronic devices for years. In 2017, members of Congress also argued that border agencies should get a warrant before searching Americans' phones amid a push from the Trump administration to allow greater access to travelers' social media accounts and electronic devices at the border.
That year, border agents searched 11,000 electronic devices but were only allowed to inspect locally stored content, not data stored on a cloud. That data can be stored for 15 years, according to a US senator who spoke with Customs and Border Patrol.