Federal Judge Nina Morrison, of the Eastern District of New York, has ruled the Fourth Amendment applies at the border, ending warrantless searches of phones and devices.

The US government and Customs and Border Patrol (CBP) has long maintained that the Fourth Amendment doesn’t apply at the border. As a result, agents will detain individuals without probable cause or a warrant, demanding they hand over their electronic devices and passwords, often copying the entire contents of the devices before returning them.

In a case brought by Kurbonali Sultanov, Judge Morrison called out the government’s position that cell phones should be searchable without a warrant, saying it was a “remarkable” claim (documents courtesy of Knight First Amendment Institute at Columbia University).

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. Opp’n Br. 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).

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.

Legal Precedent

Judge Morrison emphasized the sensitive nature of data that is available through a forcible search of one’s phone, and the intimate details of a person’s life such a search would reveal.

Until technology that can “translate people’s brain activity — like the unspoken thoughts swirling through our minds — into actual speech” meaningfully advances,8 reviewing the information in a person’s cell phone is the best approximation government officials have for mindreading. A person’s search history can reveal the questions that keep him up at night, including questions he might be too ashamed to ask his spouse or doctor. Data on a person’s cell phone may reflect information about her that is so private, she would not disclose it to her therapist or closest friend. It is not just that cell phones often contain intimate information available in microscopic detail — the number of steps the phone’s user took that day and where she took them, the results of recent blood work in the application where her doctor uploads all her medical records, or the calendar reminder for a meeting with her local Alcoholics Anonymous chapter or prayer group. It i s that the details, taken together, can provide a kaleidoscopic view of the user’s whole life.

Judge Morrison compares the situation to previous rulings that applied the Fourth Amendment to cell phone location data.

In Carpenter v. United States, 585 U.S. 296, 311–12 (2018), the Court concluded that cell-site location data, even though it is collected by (and thus not kept private from) third party cell phone companies, requires Fourth Amendment protection for precisely this reason….It reasoned that cell-site location data “provides an all-encompassing record of the holder’s whereabouts. As with GPS information, the time-stamped data provides an intimate window into a person’s life, revealing not only his particular movements, but through them his ‘familial, political, professional, religious, and sexual associations.’”

Judge Morrison then makes the point that, if protections apply to location data, they should apply even more to data on one’s phone.

The logic of Carpenter applies with even greater force to the information contained on cell phones, which includes not only the historic and specific location information captured by cell-site data, but droves of other sensitive information that is “detailed, encyclopedic, and effortlessly compiled.” Id. at 297. If the cell-site location records at issue in Carpenter hold “the privacies of life,” id.at 305 (citation omitted), then surely the heightened privacy interests associated with the far greater trove of information in a traveler’s cell phone data strike at the very heart of the Fourth Amendment.

The case also shown a spotlight on issues involving journalists, in which many have seemingly been targeted by border agents, especially after writing pieces about sensitive political topics.

The amici brief filed by the Knight First Amendment Institute at Columbia University and the Reporters Committee for Freedom of the Press makes a persuasive case that warrantless searches of cell phones not only constitute an unjustified governmental intrusion into travelers’ private expressions of religion, personal associations, and journalistic endeavors — they also risk chilling the exercise of those rights. Specifically, amici assert that border searches of electronic devices burden freedom of the press by chilling reporter-source communications. Amici Br. 12. They argue that “[j]ournalists are particularly vulnerable to the chilling effects of electronic device searches, both because confidential or vulnerable sources may refuse to speak with reporters for fear that anything they say may end up in the government’s hands, and because such searches can be used to retaliate against or deter reporting critical of the government.”

Judge Morrison said there is evidence to support the belief that incidents with journalists were not random, nor were they the work of overzealous agents, but likely a “targeted effort to surveil journalists.”

Amici’s concerns are not hypothetical but instead are based on the recent experience of numerous journalists who were flagged for secondary inspection and were required to surrender their electronic devices for warrantless searches and, in some cases, downloading of the devices’ contact lists and contents based on these journalists’ ongoing coverage of politically sensitive issues, like migration through the U.S.-Mexico border.12 After formal complaints were filed regarding a series of such incidents in 2019, it was revealed that they may not have been the isolated acts of individual border agents who suspected that a particular traveler’s device contained contraband but instead part of a targeted effort to surveil journalists in particular: a non-public CBP database that contained the names of journalists covering migration issues and which pushed “alerts” to flag those journalists for secondary screening when they returned from international travel.13 And even without the specter of a larger, insidious effort targeting journalists at the border, there remains a considerable and undue risk that — without the safeguards of a judicial warrant — journalists’ sources in and outside the United States will be fearful of relaying information about matters of public concern to them. If journalists cannot reasonably assure their sources that border officials will not have broad discretion to access and download their contacts, notes, electronic messages, and recordings, the risk of chilling fundamental press activities is unduly high.

Conclusion

In her final conclusion, Judge Morrison ruled that probable cause and a warrant must be the bar that is met for the government to be given access to such an intimate look into the life of individuals.

The right to dissent is the “fixed star in our constitutional constellation.” W.Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943). Courts must be vigilant in protecting that right, whether in the context of barring compelled speech, see id., or — as here — guarding against government intrusion into the private, expressive activities of those who may hold disfavored viewpoints. Where the government seeks access to private devices that hold such a vast array of expressive content, only the standard conceived by the Founders and codified in the Fourth Amendment — probable cause and the approval of a neutral magistrate — can bear the weight of that obligation.

Judge Morrison’s ruling is a welcome one for journalists and non-journalists alike, shutting down what many believed to be a blatant example of unconstitutional government overreach. While the ruling applies primarily to the Eastern District of New York, Judge Morrison’s decision joins a growing list of similar decisions that have placed the burden on CBP to have a legitimate basis to search a traveler’s phone.

With the growing number of cases upholding the Fourth Amendment, a legal precedent is slowly being set that should lead to greater protections for individual privacy. In the wake of Judge Morrison’s ruling—at least in New York—users’ private data should be a bit more secure at the US border than it has been in decades.

More Information

Please see How to Protect Your Data At the US Border for more info and practical steps every traveler can take to protect their data.