U.S. border agents must obtain warrant before searching cellphones, federal court rules

A federal court in New York has ruled that U.S. border 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 decision to overturn the U.S. government’s longstanding legal argument that federal border agents should be allowed to access travelers’ devices at ports of entry, such as airports, seaports and land borders, without a court-approved warrant.

Civil liberties groups that argued for the decision welcomed the ruling.

“The decision makes clear that border agents need a warrant before they can access what the Supreme Court has called ‘a window into a person’s life,’” Scott Wilkens, senior counsel at the Knight First Amendment Institute, one of the groups that filed the complaint in the case, said in a news release Friday.

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

A spokesperson 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 decision concerns a criminal case involving Kurbonali Sultanov, a U.S. citizen whose phone was confiscated by border agents at JFK airport in 2022 and asked to provide its password, which Sultanov did when agents told him he had no choice. Sultanov later moved to suppress evidence — allegedly child sexual abuse images — taken from his phone, arguing that the search violated his Fourth Amendment rights.

The U.S. border is a legally gray area, where international travelers have virtually no right to privacy and Americans can also face intrusive searches. The U.S. government asserts unique powers and authorities at the border, such as the ability to conduct warrantless device searches, which law enforcement normally cannot use against someone who has crossed into U.S. territory without first convincing a judge of suspicion sufficient to justify the search.

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

In that ruling, the judge relied in part on an amicus brief filed on behalf of the defendant, which argued that unjustified border searches also violated the First Amendment because they posed an “unreasonably high” risk of chilling the press and journalists crossing the border.

The judge in that case cited the amicus brief filed by Columbia University’s Knight First Amendment Institute 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 – the freedoms of speech, religion and association.”

The judge said that if the court accepted the government’s argument that border searches require no suspicion, “targets of the political opposition (or their colleagues, friends or family) would need only pass through an international airport once for the government to have unfettered access to the ‘most intimate window into a person’s life,'” citing a previous U.S. Supreme Court decision on cellphone privacy.

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

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

Lawmakers have long tried to close this border search gap by crafting legislation to require U.S. law enforcement to obtain a warrant for border searches. The bipartisan legislation ultimately failed, but lawmakers have not given up on ending the practice.

While several federal courts have ruled on border searches in recent years, the question of their legality is likely to end up before the Supreme Court unless lawmakers act sooner.

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