US border cops really must get a warrant in NY before searching your phones, devices

US border agents must obtain a warrant, in New York at least, to search anyone's phone and other electronic device when traveling in or out of the country, another federal judge has ruled.

Judge Nina Morrison of the Eastern District of New York issued a decision [PDF] last week that Customs and Border Patrol (CPB) officials need a warrant to search citizens and non-citizens' electronics in all but the most exceptional of circumstances. 

"It is one thing for courts to give border officials the authority to briefly detain and question air travelers and search their physical belongings," Judge Morrison opined. "But it is an entirely different matter for courts to exempt those agents from the Fourth Amendment's probable cause and warrant requirements in the vastly more intrusive context of a cellphone search."

The case in question involved the detention and questioning of naturalized US citizen Kurbonali Sultanov at New York's John F. Kennedy airport in March 2022 on suspicion he was in possession of child sexual abuse material (CSAM). After being told by CBP officers that he had no choice but to give them access to his phone, Sultanov provided his password and allowed officers to search his device. 

Based on a cursory search, and comments Sultanov made to CBP, officers obtained a warrant to search two additional phones found in his possession, leading to his indictment on alleged possession of CSAM.

The judge's decision last week pertained to Sultanov's request to suppress both the contents of his phones found in the search and his comments to CBP. The former was a violation of his Fourth Amendment rights against unreasonable search and seizure, Sultanov argued, while entering his statements into evidence violated his fifth amendment right against self-incrimination. 

Morrison decided that, while the government was wrong to perform its initial search of Sultanov's phone without a warrant, the evidence would be allowed to stand "because the search warrant was issued and executed in good faith." 

Because Sultanov is not a native English speaker who was unable to be properly informed of his Miranda rights, Morrison decided to strike his comments from evidence. 

"Warrantless searches of electronic devices at the border are an unjustified intrusion," Knight First Amendment Institute senior counsel Scott Wilkens said of the decision.

Border agents need a warrant before they can access what the Supreme Court has called 'a window onto a person's life'

"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'."

The Knight Institute, alongside the Reporters Committee for Freedom of the Press (RCFP), filed an amicus brief in support of Sultanov's objection to the initial warrantless search of his device. They argued that, specifics of the case aside, allowing warrantless searches of cellphones at the border - which the Department of Justice has long held extends 100 miles from the actual physical edge of the US - were likely to not only infringe upon fundamental rights guaranteed by the constitution, but would have a chilling effect on the ability of journalists to protect their sources. 

"Letting border agents freely rifle through journalists' work product and communications whenever they cross the border would pose an intolerable risk to press freedom," RCFP lawyer Grayson Clary said in a statement. "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."

Warrantless search protections not guaranteed in all US jurisdictions

This is not the first case to challenge CBP's sweeping authority to seize and search devices at or near the US border, and it probably won't be the last one either. 

A case decided last year - United States v. Smith - reached much the same conclusion, even allowing some of the evidence in those proceedings to stand despite the fact CBP shouldn't have obtained it. As in Sultanov's case, the judge handling Smith's objection also decided CBP had acted in good faith. 

Like Sultanov, Smith was also being investigated for crimes unrelated to his crossing of the border, in this case being accused of participating in an extortion ring that threatened violence on competing fire-suppression companies in New York City. 

Judge Morrison referred to the Smith case, and a 2014 Supreme Court decision in Riley v California that found police needed a warrant to search the phone of an arrested suspect. 

"Guided by the Supreme Court's decision in Riley, this Court concludes that the search of a cell phone at the border is a nonroutine search for Fourth Amendment purposes," Judge Morrison wrote, citing the privacy interest in the "vast trove of personal information" that can be extracted from a device outside the scope of an investigation.

"This court sees no reason that the Supreme Court's reasoning in Riley should apply with any less force to the border search exception than it does to the search incident to arrest exception," Morrison concluded.

Because both cases were decided in New York-based courts - the Eastern District in Sultanov's case and the Southern District in Smith's - the rulings only currently apply in those jurisdictions. Speaking to The Register, Wilkens said it's not clear what effect the decision could have outside the Eastern District, or even within it, as appeals could continue. 

We're told there's no indication whether the government plans to appeal the ruling; the case is ongoing. The Smith case, and another similar lawsuit, United States v. Alisigwe, are both currently before the Second Circuit Court of Appeals. 

Wilkens told us Morrison's decision was "thorough and very well reasoned," and that he's confident it will hold up to scrutiny if the government appeals that one, too. Regardless, he believes the matter is ripe for a national decision before the US Supreme Court, aka SCOTUS. 

"There is a good chance this issue will end up in the Supreme Court, because of its importance and because the circuit courts are reaching conflicting results," Wilkins said. 

US Customs and Border Patrol, which can perform searches within 100 air miles of the US border, told El Reg: "CBP cannot comment on pending criminal cases, and will continue performing its vital national security mission consistent with law and policy." ®