Month: July 2024

Image: Cath Virginia / The Verge; Getty Images

A federal judge in New York ruled that Customs and Border Protection (CBP) can’t search travelers’ phones without a warrant. The ruling theoretically applies to land borders, seaports, and airports — but in practice, it only applies to New York’s Eastern District.
That’s not nothing, though, since the district includes John F. Kennedy Airport in Queens, the sixth-busiest airport in the country. Nationwide, CBP has conducted more than 230,000 searches of electronic devices between the 2018 and 2023 fiscal years at land borders, seaports, and airports, according to its publicly available enforcement statistics.
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’s Homeland Security Investigations (HSI) unit. The HSI agents read Sultanov his Miranda rights, which he said he understood “50/50,” before questioning him.

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.
The judge, Nina R. Morrison of New York’s Eastern District, denied Sultanov’s 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.
In 2021, a US appeals court ruled that CBP agents can search travelers’ phones and other devices without a warrant and without reasonable suspicion, overturning an earlier ruling that held that warrantless, suspicionless searches violated the Fourth Amendment.
Morrison cites the judge’s ruling in that case, Alasaad v. Mayorkas, as well as other cases in which judges held that forensic examinations of cell phones are nonroutine. In Alasaad, the court ruled that “basic border searches [of electronic devices] are routine searches” but did not determine whether forensic searches require reasonable suspicion.
“This Court respectfully concludes otherwise,” Morrison writes. “Particularly in light of the record before this Court regarding the vast potential scope of a so-called ‘manual’ search, the distinction between manual and forensic searches is too flimsy a hook own which to hang a categorical exemption to the Fourth Amendment’s warrant requirement. And it is one that may collapse altogether as technology evolves.”

Though the geographical scope of the ruling is limited, the case has implications that reach far beyond Sultanov’s 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’ phones at ports of entry imperiled freedom of the press. In her ruling, Morrison wrote that journalists, as well as “the 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 ‘intimate window into a person’s life.’”
(The “intimate window” quote comes from the Supreme Court ruling in Carpenter v. United States, in which the justices ruled that police must obtain warrants to seize cellphone tower location records.)
“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,” Scott Wilkens, senior counsel at the Knight First Amendment Institute, said in a statement.
A CBP spokesperson contacted by The Verge said the agency can’t comment on pending criminal cases.
CBP’s ability to search travelers’ phones has received increased scrutiny in recent months. In April, a bipartisan group of senators sent a letter to Homeland Security Secretary Alejandro Mayorkas asking for information on what data the government retains from these searches and how the data is used. “We 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,” Sens. Gary Peters (D-MI), Rand Paul (R-KY), Ron Wyden (D-OR), and Mike Crapo (R-ID) wrote.

Image: Cath Virginia / The Verge; Getty Images

A federal judge in New York ruled that Customs and Border Protection (CBP) can’t search travelers’ phones without a warrant. The ruling theoretically applies to land borders, seaports, and airports — but in practice, it only applies to New York’s Eastern District.

That’s not nothing, though, since the district includes John F. Kennedy Airport in Queens, the sixth-busiest airport in the country. Nationwide, CBP has conducted more than 230,000 searches of electronic devices between the 2018 and 2023 fiscal years at land borders, seaports, and airports, according to its publicly available enforcement statistics.

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’s Homeland Security Investigations (HSI) unit. The HSI agents read Sultanov his Miranda rights, which he said he understood “50/50,” before questioning him.

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.

The judge, Nina R. Morrison of New York’s Eastern District, denied Sultanov’s 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.

In 2021, a US appeals court ruled that CBP agents can search travelers’ phones and other devices without a warrant and without reasonable suspicion, overturning an earlier ruling that held that warrantless, suspicionless searches violated the Fourth Amendment.

Morrison cites the judge’s ruling in that case, Alasaad v. Mayorkas, as well as other cases in which judges held that forensic examinations of cell phones are nonroutine. In Alasaad, the court ruled that “basic border searches [of electronic devices] are routine searches” but did not determine whether forensic searches require reasonable suspicion.

“This Court respectfully concludes otherwise,” Morrison writes. “Particularly in light of the record before this Court regarding the vast potential scope of a so-called ‘manual’ search, the distinction between manual and forensic searches is too flimsy a hook own which to hang a categorical exemption to the Fourth Amendment’s warrant requirement. And it is one that may collapse altogether as technology evolves.”

Though the geographical scope of the ruling is limited, the case has implications that reach far beyond Sultanov’s 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’ phones at ports of entry imperiled freedom of the press. In her ruling, Morrison wrote that journalists, as well as “the 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 ‘intimate window into a person’s life.’”

(The “intimate window” quote comes from the Supreme Court ruling in Carpenter v. United States, in which the justices ruled that police must obtain warrants to seize cellphone tower location records.)

“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,” Scott Wilkens, senior counsel at the Knight First Amendment Institute, said in a statement.

A CBP spokesperson contacted by The Verge said the agency can’t comment on pending criminal cases.

CBP’s ability to search travelers’ phones has received increased scrutiny in recent months. In April, a bipartisan group of senators sent a letter to Homeland Security Secretary Alejandro Mayorkas asking for information on what data the government retains from these searches and how the data is used. “We 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,” Sens. Gary Peters (D-MI), Rand Paul (R-KY), Ron Wyden (D-OR), and Mike Crapo (R-ID) wrote.

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