Customs and Border Protection agents need a warrant to search your phone

A federal judge in New York has ruled that Customs and Border Protection (CBP) cannot search travelers’ phones without a warrant. The ruling theoretically applies to land borders, seaports and airports, but in practice it applies only to the Eastern District of New York.

That’s no small feat, though, considering the district includes John F. Kennedy Airport in Queens, the nation’s sixth-busiest airport. Nationwide, CBP conducted more than 230,000 searches for electronic devices between fiscal years 2018 and 2023 at land borders, seaports and airports, according to publicly available enforcement statistics.

The ruling stems from a criminal case against Kurbonali Sultanov, a naturalized Uzbekistan citizen who was ordered to surrender his phone to CBP after his name triggered an alert on the Treasury Enforcement Communications System identifying Sultanov as a potential buyer or possessor of child abuse material. Sultanov, who said agents told him he had no choice but to unlock his phone, surrendered it and was then questioned by agents from Immigration and Customs Enforcement’s Homeland Security Investigations (HSI) unit. HSI agents read Sultanov his Miranda rights, which he said he understood “50/50,” before questioning him.

Government investigators later obtained a warrant for the phone CBP searched at the airport, as well as another phone Sultanov had in his possession when he entered the country. During his criminal trial, Sultanov filed a motion to suppress the evidence obtained from his phones, arguing that the initial search of his phone was illegal under the Fourth Amendment.

The judge, Nina R. Morrison of New York’s Eastern District, denied Sultanov’s motion to suppress evidence, saying the second forensic search of his phones was conducted in good faith and pursuant to a warrant. But Morrison ruled in Sultanov’s favor on Fourth Amendment grounds, finding the first search of his phone unconstitutional.

In 2021, a U.S. appeals court ruled that CBP agents may search travelers’ phones and other devices without a warrant and without reasonable suspicion, overturning an earlier ruling that had held that searches without a warrant or suspicion violate the Fourth Amendment.

Morrison quotes the judge’s ruling in that case, Alasaad v. Mayorkasas well as other cases in which judges have ruled that forensic examination of cell phones is non-routine. In AlasadThe court ruled that “simple border checks (of electronic devices) are routine checks,” but did not determine whether forensic checks require reasonable suspicion.

“This Court respectfully concludes otherwise,” Morrison writes. “Particularly in light of the record before this Court regarding the vast potential scope of a so-called ‘manual’ search, the distinction between manual and forensic searches is too weak a hook on which to hang a categorical exception to the Fourth Amendment’s warrant requirement. And it is one that may disappear altogether as technology evolves.”

While the ruling’s geographic scope is limited, the case has implications far beyond Sultanov’s. The Knight First Amendment Institute at Columbia University and the Reporters Committee for Freedom of the Press filed amici briefs in the case, arguing that allowing CBP to search travelers’ phones at border crossings without a warrant jeopardized press freedom. In her ruling, Morrison wrote that journalists, as well as “the targets of political opposition (or their colleagues, friends or families) need only pass through an international airport once to grant the government unfettered access to its most ‘intimate window into a person’s life.’”

(The quote about the “intimate window” comes from the Supreme Court ruling in Carpenter v. United Statesin which the judges ruled that police must obtain a warrant to seize location data from mobile phone masts.)

“As the court recognizes, warrantless searches of electronic devices at the border constitute an unwarranted intrusion into travelers’ private expressions, personal relationships, and journalistic activities — activities that the First and Fourth Amendments were designed to protect,” Scott Wilkens, senior counsel at the Knight First Amendment Institute, said in a statement.

A spokesperson for the CBP was approached by The edge said the agency cannot comment on pending criminal cases.

CBP’s ability to search travelers’ phones has come under increasing scrutiny in recent months. In April, a bipartisan group of senators sent a letter to Homeland Security Secretary Alejandro Mayorkas requesting information about what data the government collects from these searches and how the data is used. “We are concerned that current policies and practices regarding searches of electronic devices at the border represent a departure from the intended scope and application of border search authority,” wrote Senators Gary Peters (D-MI), Rand Paul (R-KY), Ron Wyden (D-OR) and Mike Crapo (R-ID).