Another anomaly has popped up, which has the chance to create enough of a circuit split that the Supreme Court will need to weigh in on this issue. The good news (albeit undercut a bit by “good faith”) is that another federal court has ruled the Riley warrant requirement applies at the nation’s borders.
Here’s more about the case from the Knight First Amendment Institute, which filed a brief in this case arguing for a warrant requirement.
A federal court has held that the government must obtain a warrant based on probable cause before searching travelers’ electronic devices at the border. The ruling came in a case in which a criminal defendant, Kurbonali Sultanov, moved to suppress evidence obtained from a search of his cellphone when he entered the U.S. at John F. Kennedy Airport in New York. In October 2023, the Knight First Amendment Institute at Columbia University and the Reporters Committee for Freedom of the Press filed an amicus brief in the case, arguing that warrantless searches of travelers’ phones violate the First Amendment’s protection of the freedoms of the press, speech, and association, as well as the Fourth Amendment’s protection against unreasonable searches and seizures. The judge relied heavily on the amicus brief in issuing her ruling.
“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 ruling makes clear that border agents need a warrant before they can access what the Supreme Court has called ‘a window onto a person’s life.”
This ruling has the opportunity to provide more protection for travelers within this circuit, but it will take this decision being upheld by the Second Circuit Appeals Court before anyone can actually expect a warrant requirement to be established.
And it doesn’t help Sultanov much, because while a warrant requirement might be the end result of the ruling, the CBP and DHS officers involved in the multiple searches were awarded good faith because no precedent has been established.
There’s a lot to like about the ruling, even if it’s of little use to Sultanov other than the suppression of some of the statements he made to federal officers. And there’s a lot to be concerned about as well, as testimony from officers involved in the phone searches made it clear it takes almost nothing to initiate the secondary screening that almost always results in device searches. Worse, it shows the supposedly less-invasive search (i.e., the non-forensic search) is way more invasive than travelers might imagine.
Some very enlightening answers were provided to the court, which are recounted in its ruling [PDF]. We’ve already covered the ridiculousness that is law enforcement’s assertions about “source cities” for drug running (which means basically any city with an interstate connecting it to other cities). Here’s what CBP Officer Marves Pichardo told the court about “source countries,” while being questioned about the search of Sultanov’s phone:
If they’re coming from source countries, so Europe and — anyone from Europe, and they’re — they’re traveling there often or they’ve been away from the United States for a certain amount of time, it kind of draws questions to why were they away, what information are they bringing back with them, what kind of baggage are they bringing back with them. Just things to clarify their reasons for them going abroad and coming back into the United States.
Literally just going to Europe and returning is enough to trigger a “secondary” questioning by border officers. I mean, I don’t want Americans to be subjected to the same sort of abuse, but this alone should be enough for European nations to start treating the US as inherently suspicious: a “source” country for criminals, terrorists, or other people just worth keeping an eye on.
Sultanov had a couple of strikes against him. He was returning from Uzbekistan and had already triggered an alert from TECS (Treasury Enforcement Communication System) asserting that he was a “possible purchaser or possessor of child sexual abuse material.” And, indeed, at least one image fitting that description was found during the first (warrantless) search. That triggered a second search — this one backed by a warrant — and the discovery of more images.
But going back to the first search, which the government likes to portray as cursory or basic and somehow less intrusive. It’s actually extremely intrusive. The same CBP officer said this search is unlimited. Any app that can be opened will be opened. Any communication can be read. All emails can be accessed. Basically, anything that doesn’t require a password to access can be accessed by officers during this screening. All without a warrant.
And if an app does ask for a password, federal officers will simply demand that from the traveler. Much like access to the device itself, this is treated as something the government is owed by travelers. If they refuse to hand over passwords, the government will simply seize the phone. At that point, the traveler may be free to go, but they’ll have to move forward without the essentials of everyday life.
Then there’s this, which shows federal officers will exploit people’s lack of knowledge of the law (along with a language barrier in this case) to demand things they can’t legally demand.
Sultanov’s account of his interaction with Pichardo, as memorialized in an affidavit he submitted in support of his motion to suppress, differs in certain respects from Pichardo’s testimony. Sultanov alleges that he “refused to provide the phone and the phone’s password” to the officers in the secondary inspection area. Once he refused, he was provided with a computer printout that looked like a flyer (presumably the “tear sheet” Pichardo described). Sultanov alleges that he could not understand the printout and asked for clarification. In response, the CBP officers told Sultanov that the “printout states that [he has] to provide them [his] phone’s password and the phone and [he doesn’t] have a choice or right to refuse to provide it.”
When the court says “differs,” it’s showing a bit of deference to the government. The officer’s testimony only differed in the fact that Pichardo either claimed he “couldn’t recall” saying certain things or was extremely vague about the specific things he said to Sultanov during this screening. As for the “tear sheet,” it was in English (not Sultanov’s native language) and contains nothing informing travelers they have the right to refuse to provide passwords and/or hand over devices for “inspection.”
The end result is the warrant requirement, with the court pointing out that it’s simply astounding for the government to argue it should be able to search phones without one simply because that phone happens to have crossed a border. These are arguments that didn’t work in the Riley case and they shouldn’t work here either.
The government takes the remarkable position here that cell phones should not be treated any differently for Fourth Amendment purposes than any other property a traveler carries across a border. It urges this Court to deem such searches “routine” and to hold that no individualized suspicion whatsoever is needed for border officials to search a traveler’s cell phone upon entry into the United States. In essence, the government argues that no practical limits should be placed on cell phone searches at the border whatsoever, as long as they fall into what agents categorize as a “manual” search (i.e., one unaided by extrinsic technology but limited only by the border agents’ time and interest in examining the phone’s contents). However, “the level of
intrusion into a person’s privacy is what determines whether a border search is routine.” And the government’s position fails to account for both the substantial privacy intrusions at issue here, as well as the Supreme Court’s Fourth Amendment jurisprudence concerning other advanced technologies that carry with them the potential to reveal vast amounts of the owner’s personal data.
The government still wants to pretend a phone is no different than the contents of a person’s pockets or whatever luggage they might be bringing across the border with them. While there’s a justifiable government interest in preventing physical contraband from crossing the border, the justification falls apart when it’s data, which cannot be stopped at the border — not when it’s available through cloud storage or from websites located outside of the US but easily accessible by US residents and citizens.
That means no “manual” searches without a warrant.
Many courts have found the distinction between manual and forensic searches of electronic devices to have constitutional significance. This Court concludes, however, that the privacy intrusion of a manual search is substantially the same, for Fourth Amendment purposes, as the privacy intrusion of a forensic search, at least as those searches are conducted by CBP at the border. Each involves such a vast intrusion on a traveler’s privacy that, under the Fourth Amendment, both must generally be supported by a warrant.
Good faith saves the search in this case. But there will be no good faith exception to the warrant requirement moving forward. This will undoubtedly be appealed because the US government has zero interest in respecting rights anywhere near a national border or within our multiple international airports. It will soon be in the Second Circuit’s hands. Hopefully, the Appeals Court will do the right thing and apply the Riley warrant requirement to device searches at the border.
