A federal judge in New York ruled that Customs and Border Protection (CBP) can\u2019t search travelers\u2019 phones without a warrant. The ruling theoretically applies to land borders, seaports, and airports \u2014 but in practice, it only applies to New York\u2019s Eastern District. <\/p>\n<\/div>\n
That\u2019s not nothing, though, since the district\u00a0includes John F. Kennedy Airport in Queens, the sixth-busiest airport in the country. Nationwide, CBP has conducted more than 230,000 searches<\/a> of electronic devices between the 2018 and 2023 fiscal years at land borders, seaports, and airports, according to its publicly available enforcement statistics. <\/p>\n<\/div>\n The ruling stems from a criminal case against Kurbonali Sultanov, a naturalized US citizen from Uzbekistan, who was ordered to hand his phone over to CBP after his name triggered an alert on the Treasury Enforcement Communications System identifying Sultanov as a potential purchaser or possessor of child sexual abuse material. Sultanov, who said the agents said he had no choice but to unlock his phone, handed it over and was then questioned by officers with Immigration and Customs Enforcement\u2019s Homeland Security Investigations (HSI) unit. The HSI agents read Sultanov his Miranda rights, which he said he understood \u201c50\/50,\u201d before questioning him.<\/p>\n<\/div>\n Government investigators later obtained a warrant for the phone CBP had 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 that had been obtained from his phones, arguing that the initial search of his phone was illegal under the Fourth Amendment.\u00a0<\/p>\n<\/div>\n The judge, Nina R. Morrison of New York\u2019s Eastern District, denied Sultanov\u2019s 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 favor of Sultanov on Fourth Amendment grounds, finding that the initial search of his phone was unconstitutional.\u00a0<\/p>\n<\/div>\n In 2021, a US appeals court ruled that CBP agents can search travelers\u2019 phones and other devices<\/a> without a warrant and without reasonable suspicion, overturning an earlier ruling that held that warrantless, suspicionless searches violated the Fourth Amendment. <\/p>\n<\/div>\n Morrison cites the judge\u2019s ruling in that case, Alasaad v. Mayorkas<\/em>, as well as other cases in which judges held that forensic examinations of cell phones are nonroutine. In Alasaad<\/em>, the court ruled that \u201cbasic border searches [of electronic devices] are routine searches\u201d but did not determine whether forensic searches require reasonable suspicion.\u00a0<\/p>\n<\/div>\n \u201cThis Court respectfully concludes otherwise,\u201d Morrison writes. \u201cParticularly in light of the record before this Court regarding the vast potential scope of a so-called \u2018manual\u2019 search, the distinction between manual and forensic searches is too flimsy a hook own which to hang a categorical exemption to the Fourth Amendment\u2019s warrant requirement. And it is one that may collapse altogether as technology evolves.\u201d<\/p>\n<\/div>\n Though the geographical scope of the ruling is limited, the case has implications that reach far beyond Sultanov\u2019s case. 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 letting CBP conduct warrantless searches of travelers\u2019 phones at ports of entry imperiled freedom of the press. In her ruling, Morrison wrote that journalists, as well as \u201cthe targets of political opposition (or their colleagues, friends, or families) would only need to travel once through an international airport for the government to gain unfettered access to the most \u2018intimate window into a person\u2019s life.\u2019\u201d <\/p>\n<\/div>\n (The \u201cintimate window\u201d quote comes from the Supreme Court ruling in Carpenter v. United States<\/em><\/a>, in which the justices ruled that police must obtain warrants to seize cellphone tower location records.)<\/p>\n<\/div>\n \u201cAs the court recognizes, warrantless searches of electronic devices at the border are an unjustified intrusion into travelers\u2019 private expressions, personal associations, and journalistic endeavors\u2014activities the First and Fourth Amendments were designed to protect,\u201d Scott Wilkens, senior counsel at the Knight First Amendment Institute, said in a statement<\/a>.<\/p>\n<\/div>\n A CBP spokesperson contacted by The Verge<\/em> said the agency can\u2019t comment on pending criminal cases.<\/p>\n<\/div>\n CBP\u2019s ability to search travelers\u2019 phones has received increased scrutiny in recent months. In April, a bipartisan group of senators sent a letter<\/a> to Homeland Security Secretary Alejandro Mayorkas asking for information on what data the government retains from these searches and how the data is used. \u201cWe are concerned that the current policies and practices governing the search of electronic devices at the border constitute a departure from the intended scope and application of border search authority,\u201d Sens. Gary Peters (D-MI), Rand Paul (R-KY), Ron Wyden (D-OR), and Mike Crapo (R-ID) wrote.\u00a0<\/p>\n<\/div>\n<\/div>\n