U.S. law has long provided a border search exception to the Fourth Amendment warrant or probable cause requirement, allowing federal agents to search people, and their electronic devices, at border crossings without a warrant or probable cause. The scope of the exception may be narrowing under increased court scrutiny as modern cell phones provide what the Court called an “intimate window into a person’s life.”
The government has long contended that border agents need to be able to conduct warrantless searches of cell phones for security purposes. In United States v. Sultanov, a New York federal court in the Eastern District of New York ruled that border agents must obtain a warrant based on probable cause before conducting searches of electronic devices at the border. The court ruled that searches of cell phones or other electronic devices are “nonroutine,” bringing them outside the border search exception. In its ruling, the court made the following distinction between routine searches and cell phone searches:
It is one thing for courts to give border officials the authority to briefly detain and question air travelers and search their physical belongings based on something more than a “hunch” but “obviously less than is necessary for probable cause.” But it is an entirely different matter for courts to exempt those agents from the Fourth Amendment’s probable cause and warrant requirements in the vastly more intrusive context of a cell phone search, which can reveal “[t]he sum of an individual’s private life.”
(Internal citations omitted.)
This ruling affects only the Eastern District of New York, which is one of the busiest transportation hubs in the United States – since it includes John F. Kennedy International Airport (JFK). This does not mean that U.S. citizens and international travelers should not be careful when traveling internationally with electronic devices that contain confidential information – even if you plan to fly into JFK.
Civil liberties groups are applauding the Sultanov holding, but due to its limited applicability, and depending on the type of information stored on your cell phone, it may still be best practice to:
- Consider traveling with a temporary, inexpensive cell phone that does not contain access to sensitive or confidential information; and
- Store sensitive information in the cloud, only retrieving it when you need it.
According to Customs and Border Protection data, more than 41,700 device searches were conducted in 2023.
The ruling comes in a criminal case against Kurbonali Sultanov, a naturalized U.S. citizen, who sought to suppress evidence obtained from searches of his phones at JFK. The border officers conducted a manual search of his phone and ultimately received a warrant to conduct a forensic search. Although the court held the initial search was unconstitutional, the judge ultimately denied the motion to suppress, concluding the officers had acted in good faith.
The court held the warrantless search violated both the First and Fourth Amendments. It held the search violated the First Amendment because allowing such searches could chill freedom of speech, freedom of association, and, particularly, freedom of the press. It held the search violated the Fourth Amendment because such a search at the border is an unjustified intrusion into a traveler’s private expressions and personal endeavors.
Jackson Lewis attorneys are available to assist with any questions regarding international travel, including issues around warrantless searches.
