Courts Close the Loophole Letting the Feds Search Your Phone at the Border
A federal judge ruled that cellphone searches at the border require a warrant and probable cause, emphasizing privacy concerns and reinforcing Fourth Amendment rights amid ongoing debates about press freedoms.
Read original article
A federal judge in New York has ruled that searches of cellphones at the border require a warrant and probable cause, closing a loophole previously exploited by Customs and Border Protection (CBP). Judge Nina Morrison stated that cellphone searches are "nonroutine" and have a greater privacy impact than traditional searches of physical belongings. This ruling comes amid ongoing concerns about the implications of such searches on First Amendment rights, particularly for journalists. The judge referenced cases where journalists' phones were searched due to their reporting on sensitive issues, potentially endangering confidential sources. The decision aligns with previous rulings from the 4th and 9th Circuits, which mandated reasonable suspicion for cellphone searches at the border. The case involved Kurbonali Sultanov, who was found with illegal content on his phone after returning from Uzbekistan. Although the evidence from the phone was suppressed, Sultanov's admission about downloading the material remained valid. The ruling reflects a growing trend of courts limiting the government's ability to conduct warrantless searches of electronic devices, emphasizing the need for constitutional protections against unreasonable searches. Civil liberties organizations have supported these restrictions, arguing that warrantless searches pose significant threats to privacy and press freedoms. The ruling is seen as a significant step in reinforcing Fourth Amendment rights at the border, particularly in the context of evolving technology and its implications for personal privacy.
Related
SCOTUS Rules That US Government Can Continue Talking to Social Media Companies
The Supreme Court allows US government to communicate with social media companies, overturning an injunction. Court finds lack of evidence for direct censorship injuries. Decision may increase government-platform interaction.
The NSA Wants Carte Blanche for Warrantless Surveillance
The NSA seeks expanded warrantless surveillance powers under Section 702, raising concerns about privacy infringement. The proposed SAFE Act aims to modify warrant requirements, sparking debate over government surveillance authority.
No reasonable expectation of privacy in one's Google location data
The Fourth Circuit Court ruled users lack privacy expectations in Google location data. Google offers control over data, including location history stored in Sensorvault. Geofence warrants addressed, requiring law enforcement to follow specific procedures. Court found geofencing compliant with the Fourth Amendment, sparking debates on tech-law enforcement balance.
It's never been easier for the cops to break into your phone
Law enforcement, including the FBI, uses advanced tools to access suspects' phones rapidly. Recent events highlight agencies' access to phone-hacking tools like Cellebrite, sparking debates on privacy versus law enforcement requirements.
What "consent" looks like for the DEA and TSA
DEA and TSA collaborate to seize travelers' cash using informers and airport checkpoints. Video shows DEA agents ignoring refusals to search, sparking a lawsuit against illegal searches and seizures. Travelers resist systemic targeting.
- Many commenters express skepticism about the effectiveness and enforcement of the ruling, questioning whether it will hold up against potential Supreme Court challenges.
- There are concerns about the implications of the ruling for non-citizens and the extent of privacy rights at the border.
- Some users highlight the potential risks of data exposure and identity theft associated with cellphone searches.
- Several comments criticize past practices of warrantless searches and call for accountability for those who conducted illegal searches.
- Others argue that the government has a historical right to control border security, suggesting that the ruling may be overturned on appeal.
13 commentsHonestly, I would probably rather undergo a strip search than a cellphone scan. There won’t be any incriminating evidence I have forgotten about and everything is done as soon as I leave the room. With a cellphone scan, I have to worry about something that was innocent that I have even forgotten about but may be considered incriminating now. In addition, they would now have enough information for identity theft. Also, I don’t know that is happening with the data or if any back doors have been installed.
Indeed, this same federal court has already ruled against warrantless phone searches in US v Smith (SDNY 2023).
Or does it apply to everybody?
And if it does, is it reason to refuse someone? I.e. can they refuse an L1B visa holder entry because he/she doesn't allow them to search the phone?
Oh, okay then, how about at least for deprivation of civil rights under the color of law?
Well then, what about monetary damages for the people whose data was copied, devices were stolen or could no longer be trusted, wasted time and missed flights, costs of retaining an attorney to defend themselves, etc?
Oh, the result is that the criminals that did this are just going to have to pause for a little bit until some attorney working for their agency, whom we are also paying for, writes a new justification with slightly tweaked reasoning, at which time the perps will resume?!?
Sovereign immunity strikes again. None of these terrible authoritarian dynamics are ever going to be reigned in until sovereign immunity is severely curtailed. At the very least we need civil liability that compensates the victims out of the department's budget. Ideally there should be criminal liability, either on the individuals performing the illegal actions, or if they're following written policy then whomever instituted that policy.
And if you think this sounds extreme, then note it's still more lenient than what the rest of us get! Security guards, private investigators, and even just individuals defending themselves still manage to operate while staying well away from the edges of the law. And in general, staying away from the edges of the law is the exact dynamic we want for those involved in physically coercing others.
Does a strip search also require a warrant though?
In the 1980s the only border I knew where printed material was searched was the East German border. Back then the practice was considered outrageous.
The government has a 100% absolute right and responsibility to control what's coming across the border. That's been the common law since King Narmer.
In law school, it's common to skip these cases for time and have the professor summarize the caselaw as "you have no rights at border."
Related
SCOTUS Rules That US Government Can Continue Talking to Social Media Companies
The Supreme Court allows US government to communicate with social media companies, overturning an injunction. Court finds lack of evidence for direct censorship injuries. Decision may increase government-platform interaction.
The NSA Wants Carte Blanche for Warrantless Surveillance
The NSA seeks expanded warrantless surveillance powers under Section 702, raising concerns about privacy infringement. The proposed SAFE Act aims to modify warrant requirements, sparking debate over government surveillance authority.
No reasonable expectation of privacy in one's Google location data
The Fourth Circuit Court ruled users lack privacy expectations in Google location data. Google offers control over data, including location history stored in Sensorvault. Geofence warrants addressed, requiring law enforcement to follow specific procedures. Court found geofencing compliant with the Fourth Amendment, sparking debates on tech-law enforcement balance.
It's never been easier for the cops to break into your phone
Law enforcement, including the FBI, uses advanced tools to access suspects' phones rapidly. Recent events highlight agencies' access to phone-hacking tools like Cellebrite, sparking debates on privacy versus law enforcement requirements.
What "consent" looks like for the DEA and TSA
DEA and TSA collaborate to seize travelers' cash using informers and airport checkpoints. Video shows DEA agents ignoring refusals to search, sparking a lawsuit against illegal searches and seizures. Travelers resist systemic targeting.