The Fourth Amendment still applies at the border, despite the federal government’s insistence that it does not apply.
For years, courts have ruled that the government has the right to conduct routine, warrantless searches for contraband at the border. Customs and Border Protection (CBP) exploited a loophole in the Fourth Amendment’s protection against unreasonable searches and seizures to force travelers to turn over information on their cellphones and laptops.
But on Wednesday, Judge Nina Morrison of the Eastern District of New York rule A cellphone search is an “unconventional” search, more akin to a strip search than scanning suitcases or putting travelers through metal detectors.
While “interests in stopping smuggling are undoubtedly satisfied when the government searches the luggage or pockets of border crossers carrying items that can only be brought into the country by physically crossing the border, the extent to which those interests are satisfied remains unclear when the government searches the bags or pockets of people crossing the border with items stored on a person’s cell phone.” When it comes to data, the situation is less clear,” the judge declared.
Morrison noted that “looking at the information on a person’s phone is the best approximation of a government official’s mind reading,” so searching phone data would have a greater privacy impact than going through physical property. The court therefore ruled that two probable cause were needed to conduct cellphone searches at the border and Search warrant. Morrison did not distinguish between using special software to scan the contents of the phone and manually browsing the contents of the phone.
The judge also specifically acknowledged the First Amendment’s impact on cellphone searches, a win for reporters. she cited reports intercept and vice Regarding the CPB’s searches of journalists’ phones “based on these journalists’ ongoing reporting on politically sensitive matters,” it warned that these phone searches could put confidential sources at risk.
Wednesday’s ruling adds to a series of cases limiting the federal government’s ability to search travelers’ electronics. The 4th and 9th circuit courts, covering mid-Atlantic and western states, ruled that border police need to be at least “reasonable suspicion“Searching a cell phone is a crime. Last year, a judge in the Southern District of New York also ruled The government “may not copy and search U.S. citizens’ cellphones at the border without a search warrant except in exigent circumstances.”
Wednesday’s ruling concerned the right to defend unsympathetic people. U.S. citizen Kubonali Sultanov allegedly downloaded a crude Russian pornography archive that included several images of child sexual abuse, putting him on a government watch list. While Sultanov was on his way back from visiting family in Uzbekistan, Homeland Security agents pulled him aside at the airport, searched his phone and discovered the photos.
Morrison withheld evidence from the phone search but not Sultanov’s “spontaneous” statement admitting to downloading the video. Her order would not prevent police from obtaining Sultanov’s phone in the traditional way. Sultanov allegedly downloaded the pornographic material while in the United States and his name appeared on the watch list two months before the return flight. In fact, the FBI did obtain a court order to search Sultanov’s backup cell phone.
Last year’s ruling in the Southern District of New York also involved cold character. Bloods gang member Jatiek Smith was charged with “A takeover of violence and extortionWhile Smith was flying home from a vacation in Jamaica, the FBI took the opportunity to search Smith’s phone at the border.
Judge suppresses evidence in phone search, but Smith Convicted anyway. In both cases, the FBI was able to obtain a search warrant for the suspect’s phone; they viewed the border breach as a way to skip that step.
In fact, U.S. Customs and Border Protection officer Mavis Pichardo acknowledged that these raids are often unauthorized fishing expeditions. Pichardo testified at the evidence suppression hearing that U.S. Customs and Border Protection searches U.S. citizens’ cellphones if they come from “countries that are currently having political difficulties where we’re currently looking for intelligence and things like that.” He claimed that U.S. Customs and Border Protection agents can “view almost anything stored on the phone” and that passengers are often “very compliant.”
Civil libertarians intervened in the Sultanov case because of the government’s claim to power. Columbia University’s Knight First Amendment Institute and the Reporters Committee for Freedom of the Press submitted a a friend briefly In October 2023, argued that warrantless phone searches are “a serious threat to the Fourth Amendment right to privacy and the First Amendment freedoms of press, speech, and association.” Morrison cited the briefing extensively in his ruling.
“As the courts have recognized, allowing border agents to freely search journalists’ work and communications as they cross the border would constitute an intolerable infringement of press freedom,” said Grayson Clary, staff attorney at the Reporters Committee for Freedom of the Press. Risk. “This sweeping opinion provides strong guidance for other courts addressing this issue and clarifies that the Constitution requires a warrant before searching a reporter’s electronic devices. “
