Federal Judges Closing Loophole That Permits Government to Conduct Warrantless Searches of Cellphones at Border
by Douglas Ankney
In a series of rulings from federal judges, the loophole allowing government agents from Customs and Border Patrol (“CBP”) to search cellphones without a warrant is closing. According to a report from Reason, on July 24, 2024, Judge Nina Morrison from the U.S. District Court for the Eastern District of New York “ruled that cellphone searches are a ‘nonroutine’ search more akin to a strip search than scanning a suitcase or passing a traveler through a metal detector.” United States v. Sultanov, 2024 U.S. Dist. LEXIS 130742 (2024).
Morrison explained that although the government’s interests in stopping contraband are “undoubtedly served when the government searches the luggage or pockets of a person crossing the border carrying objects that can only be introduced to this country by being physically moved across its borders, the extent to which those interests are served when the government searches data stored on a person’s cellphone is far less clear.” Owing to the amount of data stored on a cellphone and the extent of the intrusion into the person’s privacy, Morrison compared the government’s invasive review of a person’s information stored on a cellphone to “mind reading.”
Morrison concluded, therefore, that searching a cellphone at the border requires probable cause and a warrant. She made no distinction between using software to scan a phone’s contents or manually flipping through it.
Due to the powers the government was claiming, two civil libertarian groups—the Knight First Amendment Institute at Columbia University and the Reporters Committee for Freedom of the Press—argued in an amicus brief that warrantless cellphone searches are “a grave threat to the Fourth Amendment right to privacy as well as the First Amendment freedoms of the press, speech, and association.” Morrison cited extensively to that brief in her opinion.
With a specific concern for journalists, Morrison recognized the First Amendment implications of cellphone searches. Referencing reports from The Intercept and VICE regarding CBP officers searching journalists’ cellphones, Morrison warned that “based on these journalists’ ongoing coverage of sensitive issues,” those searches “could put confidential sources at risk.”
Disturbingly, CBP Officer Marves Pichardo testified at a suppression hearing that CBP searches U.S. citizens’ phones when they are coming from “countries that have political difficulties at this point in time and that we’re currently looking at for intelligence and stuff like that.” Pichardo openly admitted that these warrantless searches were “fishing expeditions” and added that CBP agents can “look at pretty much anything that’s stored on the phone.”
Grayson Clary, staff attorney with the Reporters Committee for Freedom of the Press, issued a statement: “As the court recognized, letting border agents freely rifle through journalists’ work product and communications whenever they cross the border would pose an intolerable risk to press freedom. This thorough opinion provides powerful guidance for other courts grappling with this issue, and makes clear that the Constitution would require a warrant before searching a reporter’s electronic devices.”
Morrison’s ruling is one in a series of recent rulings from the federal judiciary limiting the power of the CBP to search cellphones at the border without a warrant. The Fourth Circuit—which covers the mid-Atlantic states of Maryland, West Virginia, Virginia, and both North and South Carolina—has ruled that CBP agents need at least “reasonable suspicion” of a crime in order to search cellphones. The Ninth Circuit—which covers the Western states—has issued a similar ruling. And last year, a judge from the U.S. District Court for the Southern District of New York held that the government “may not copy and search an American citizen’s cellphone at the border without a warrant absent exigent circumstances.”
Hopefully, the days of unfettered, suspicionless fishing expeditions involving travelers’ cellphones at the U.S. border are coming to an end.
Sources: reason.com; United States v. Sultanov, 2024 U.S. Dist. LEXIS 130742 (2024)
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