A federal district court in New York has ruled that U.S. border patrol agents must obtain a warrant before searching the electronic devices of Americans and international travelers crossing the U.S. border.
The July 24 ruling is the latest court opinion to overturn the U.S. government's long-held legal argument that federal border patrol agents should be allowed to access travelers' devices at points of entry, such as airports, ports and land borders, without a court-approved warrant.
Human rights groups supported the sentence and praised it.
“This decision makes clear that Border Patrol agents need a warrant to access what the Supreme Court calls a 'window into private lives,'” Scott Wilkens, senior counsel at the Knight First Amendment Institute, one of the groups that filed the lawsuit, said in a press release Friday.
The district court's decision applies to the entire Eastern District of New York, including airports around New York City, including John F. Kennedy International Airport, one of the nation's largest transportation hubs.
A spokesman for U.S. Customs and Border Protection, which oversees border security, did not respond to a request for comment outside business hours.
The ruling concerns the criminal case of U.S. citizen Kurbonari Sultanov, whose cell phone was confiscated by Border Patrol agents at John F. Kennedy International Airport in 2022 and who asked him to provide the password. Sultanov was told he had no choice and the officers demanded the password. Sultanov subsequently filed a motion to suppress evidence of purported child sexual abuse material seized from his phone, arguing that the search violated his Fourth Amendment rights.
The U.S. border is a legal grey area, where international travelers have few privacy rights and even Americans can face invasive searches. The U.S. government asserts its own powers at the border, such as searching devices without a warrant, but law enforcement typically cannot use these powers against someone who crosses into U.S. territory unless it convinces a judge that it has enough suspicion to justify a search.
Critics have long argued that such searches are unconstitutional and violate the Fourth Amendment to the U.S. Constitution, which protects against unreasonable searches and seizures of personal electronic devices.
In his decision, the judge relied in part on an amicus brief filed by the defense, arguing that unreasonable border searches also violate the First Amendment by posing a “disproportionately high” risk of a chilling effect on reporting and on journalists crossing the border.
The judge in the case cited an amicus brief filed by Columbia University's Knight First Amendment Institute and the Reporters Committee for Freedom of the Press, which said the court ” [the groups’] “Concerns that warrantless searches of electronic devices at the border could impinge on other freedoms protected by the First Amendment, namely freedom of speech, religion and association.”
The justices wrote that if the court had upheld the government's argument that no suspicion is necessary to search devices at the border, “targets of political opposition (or their associates, friends or family) need only pass through an international airport once to give the government unfettered access to the most private of 'windows into their lives,'” citing previous U.S. Supreme Court decisions on cell phone privacy.
The court ruled that the warrantless search of Sultanov's cell phone was unconstitutional, but concluded that the government acted in good faith at the time of the search and denied Sultanov's motion to exclude evidence from the phone.
It remains unclear whether federal prosecutors will appeal the sentence to the U.S. Court of Appeals for the Second Circuit, which includes New York.
Federal border agents conducted more than 41,700 device checks on international travelers in 2023, according to CBP's own data.
Lawmakers have long tried to close loopholes in border searches by drafting legislation that would require warrants for border searches, and while a bipartisan bill was ultimately rejected, lawmakers aren't giving up on ending the practice altogether.
Several federal courts have ruled on border checks in recent years, and unless lawmakers act sooner, the question of the legality of border checks could eventually end up before the Supreme Court.
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