Monday, July 29, 2024

Fourth Amendment victory at the border

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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