A federal court has held that the government must obtain a warrant based on probable cause before searching travelers’ electronic devices at the border, according to the Knight First Amendment Institute at Columbia University. 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.”
Sultanov was stopped for questioning at John F. Kennedy
Airport in March 2022. He initially refused to provide the password to his
cellphone but complied when officers told him he had no choice. The officers searched
the cellphone manually at JFK, and subsequently searched the phone forensically
after obtaining a warrant. In a subsequent criminal case in the Eastern
District of New York, Sultanov filed a motion to suppress the evidence obtained
from his phone, arguing that the warrantless search of the device at JFK, and
the later forensic search, violated his Fourth Amendment rights.
The court held that the warrantless search of Sultanov’s
cell phone at JFK violated the Fourth Amendment, but ultimately denied his
motion to suppress because the court concluded that the government acted in
good faith.
The court also held that border searches of electronic
devices burden core First Amendment rights, including freedom of speech,
freedom of religion, freedom of association, and freedom of the press. In
reaching this conclusion, the court relied on records obtained by the Knight
Institute through a Freedom of Information Act (FOIA) lawsuit, which describe
travelers’ experiences with electronic device searches at the border. Read more
about that lawsuit here.
The court also explained that these searches chill
communications between reporters and their sources, again pointing to the amicus
brief filed by the Knight Institute and Reporters Committee for Freedom of the
Press, which detailed the experiences of numerous journalists who when entering
the U.S. were flagged for secondary inspection and were required to surrender
their electronic devices for warrantless searches.
“As the court recognized, letting border agents freely rifle
through journalists' work product and communications whenever they cross the
border would pose an intolerable risk to press freedom,” said Grayson Clary, staff
attorney at the Reporters Committee for Freedom of the Press. “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.”
Read the ruling here.
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