It was decided by a federal district court in New York that U.S. border officers need a warrant before they can search the electronic devices of Americans and foreigners crossing the U.S. border.
The July 24 ruling is the latest court opinion to go against the U.S. government’s long-standing legal case that federal border agents should be able to access travellers’ devices at ports of entry, such as airports, seaports, and land borders, without a warrant from the court.
Civil rights groups that pushed for the decision were happy with it.
The decision makes it clear that border agents need a warrant before they can get to what the Supreme Court has called “a window into a person’s life,” a group that brought the case said in a press release Friday. “Scott Wilkens, senior counsel at the Knight First Amendment Institute, speaks out against this.”The district court’s decision applies to all airports in the U.S. Eastern District of New York. This includes John F. Kennedy International Airport in the New York City area, which is one of the busiest airports in the country.
A request for comment made outside of work hours did not get a response from U.S. Customs and Border Protection, the agency in charge of border security.
The court’s decision is about a criminal case involving Kurbonali Sultanov, a U.S. citizen whose phone was taken by border officials at JFK Airport in 2022 and who was told he had to give them his password. Sultanov did what they told him to do. Later, Sultanov tried to get the evidence—thought to be child sexual abuse material—taken from his phone thrown out by saying the search broke his Fourth Amendment rights.
At the U.S. border, the law isn’t clear, so foreign travellers don’t have much of a right to privacy, and Americans can also be searched without their permission. At the border, the U.S. government has special rights and powers, like searching people’s phones without a warrant, which is something that regular police can’t do to someone who has crossed into the U.S. without first showing a judge they have enough reason to search them.
Critics have said for years that these searches are against the Constitution and the Fourth Amendment, which protects people from having their electronic devices searched or taken without a permit.
The judge made this decision in part based on an amicus brief written on behalf of the defendant. It said the illegal border searches also violate the First Amendment because they pose a “unduly high” risk of stifling press activities and journalists crossing the border.
The judge in the case referred to the amicus brief that was sent by the Reporters Committee for Freedom of the Press and the Knight First Amendment Institute at Columbia University. The judge also said that the court “shares [the groups’] concerns about the effect of warrantless searches of electronic devices at the border on other freedoms protected by the First Amendment, such as the freedoms of speech, religion, and association.”
The judge said that if the court agreed with the government that searching devices at the border doesn’t need any suspicion, then “political opponents (or their coworkers, friends, or families) would only have to pass through an international airport once for the government to gain unrestricted access to the most ‘intimate window into a person’s life,'” referring to a previous U.S. Supreme Court decision on cell phone privacy.
The court said that searching Sultanov’s phone without a warrant was against the Constitution. However, the court also said that the government was acting in good faith during the search, so Sultanov’s move to suppress the evidence from his phone was denied.
It’s not clear yet if federal officials will take the case to the U.S. Court of Appeals for the Second Circuit, which has New York as one of its cities.
CBP’s own records show that the federal border agency searched more than 41,700 devices of foreign travellers in 2023.
Lawmakers have been working for a long time to close the border search loophole by writing laws that would make it necessary for U.S. police to get a request before searching devices at the border. The bipartisan bill failed in the end, but politicians are still trying to end the practice for good.
Also Read: Biden’s Administration Will Reopen Four Southern Border Ports of Entry
In the past few years, several federal courts have ruled on the legality of border searches. If lawmakers don’t act sooner, the problem will likely end up before the Supreme Court.
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