A hot potato: A New York federal judge has ruled that warrantless searches of American citizens' phones by Customs and Border Protection (CBP) are a violation of the Fourth Amendment. The ruling stated that searching through someone's phone is an invasion of a traveler's privacy and "the best approximation government officials have for mindreading."
The ruling was part of a 2022 criminal case against Kurbonali Sultanov, a naturalized US citizen, who was ordered to hand over his phone to CBP agents after he was identified by the Treasury Enforcement Communications System as a potential purchaser or possessor of child sexual abuse material.
Border agents told Sultanov to hand over his phone and password. Four videos of child sexual abuse material were allegedly found on the device.
A warrant for a forensic search of the phone and another that Sultanov had on him when he entered the country was obtained later. He was indicted and has been trying to get some of the evidence supressed due to the warrantless serach.
Judge Nina R. Morrison of New York's Eastern District said that while the second forensic search of his phones was conducted in good faith and pursuant to a warrant, she agreed with Sultanov's argument that the first warrantless search was a violation of his Fourth Amendment rights, and therefore unconstitutional.
A Massachusetts district court ruled in 2019 that "suspicionless searches" of international travelers' smartphones and laptops at US ports of entry was a Fourth Amendment violation, but that decision was overturned in 2021, allowing devices to be searched without a warrant or reasonable suspicion.
The Knight First Amendment Institute at Columbia University, a non-profit that defends the freedoms of speech and the press through litigation, research, and education, filed an amicus brief with the Reporters Committee for Freedom of the Press.
"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," said Scott Wilkens, senior counsel at the Knight First Amendment Institute.
The Verge notes that while the ruling practically applies only to New York's Eastern District, it theoretically could influence practices at land borders, seaports, and airports.
Masthead: U.S. Customs and Border Protection
Warrantless phone searches by customs agents violate the Fourth Amendment, judge rules
