US border agents must have a warrant before searching cellphones, federal court rules

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

The July 24 ruling is the latest court decision to overturn a longstanding U.S. government legal argument that federal Border Patrol agents should be able to access travelers’ devices at border crossings, such as airports, seaports and land borders, without a court order.

Civil rights groups that advocated for the ruling praised the decision.

“The ruling makes clear that border agents must obtain a warrant before gaining access to what the Supreme Court has called ‘a window into someone’s life,’” Scott Wilkens, senior attorney at the Knight First Amendment Institute, one of the groups that brought the case, said in a news release Friday.

The district court’s ruling applies to the entire Eastern District of New York, which includes airports in the New York City area, such as John F. Kennedy International Airport, one of the largest transportation hubs in the United States.

A spokesman for U.S. Customs and Border Protection, the agency responsible for border security, did not respond to a request for comment outside business hours.

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

The U.S. border is a legally hazy space where international travelers have almost no right to privacy and where Americans can also face intrusive searches. The U.S. government has unique powers and authorities at the border, such as the ability to conduct warrantless searches of devices, that law enforcement normally cannot use against someone crossing the border onto U.S. soil without first convincing a judge that there is sufficient suspicion to justify the search.

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

In this decision, the court relied in part on an amicus curiae brief filed on behalf of the defendant, which argued that the unwarranted border controls also violate the First Amendment because they create an “unnecessarily high” risk of a deterrent effect on news operations and journalists crossing the border.

The judge in the case cited the amicus curiae 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 — freedoms of speech, religion, and association.”

The judge said that if the court had sided with the government that searching devices at the border does not require suspicion, “targets of political opposition (or their colleagues, friends or families) would have to transit through an international airport only once to give the government unfettered access to the most ‘intimate window into a person’s life,’” the latter citing an earlier U.S. Supreme Court ruling on cellphone privacy.

Although the court found that the warrantless search of Sultanov’s phone was unconstitutional, the court concluded that the government acted in good faith when it conducted the search. Sultanov’s motion to suppress the evidence on his phone was denied.

It is not yet known whether federal prosecutors will appeal the decision to the U.S. Court of Appeals for the Second Circuit, which covers New York.

According to CBP’s own data, the federal border agency conducted more than 41,700 device checks on international travelers in 2023.

Lawmakers have long tried to close the loophole in the border search law by creating legislation that would require U.S. law enforcement to obtain a warrant to search devices at the border. The bipartisan legislation ultimately failed, but lawmakers have not given up on ending the practice altogether.

Given that several federal courts have ruled on border controls in recent years, the question of their legality will likely end up before the Supreme Court unless lawmakers take action sooner.

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