The District Court for the Eastern District of New York has ruled that the US government must reverse course on its policy of warrantless searches of US (and foreign) nationals’ electronic devices as they enter the country.
We obtained a copy of the ruling for you here.
This is not the only court decision on this issue, while this particular outcome, requiring that border agents obtain court-issued orders before performing such searches, concerns the district that is the court’s seat – therefore also a major port of entry, JFK International Airport.
It was precisely at this airport that an event unfolded which set in motion a legal case. In 2022, US citizen Kurbonali Sultanov was coerced (he was told he “had no choice”) into surrendering his phone’s passport to border officers.
Sultanov later became a defendant in a criminal case but argued that evidence from the phone should not be admitted because the device was accessed in violation of the Fourth Amendment (which protects Americans against unreasonable and warrantless searches).
Of course, all these envisaged protections refer to US citizens, and even there prove to be sketchy in many instances. Foreign travelers (even though entering the country legally) are effectively left without any protections regarding their privacy.
Sultanov’s argument was supported in an amicus brief filed the following year by the Knight First Amendment Institute and the Reporters Committee for Freedom of the Press, who said that the First Amendment is violated as well when law enforcement gains access to phones without a warrant since it invalidates constitutional protections of speech, freedom of the press, religion, and association.
The New York Eastern District Court’s decision is by and large based precisely on that amicus brief. One of the arguments from it is that journalists entering the US are often forced to hand over their devices.
The court agreed that “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 Reporters Committee for Freedom of the Press attorney Grayson Clary in a press statement.
Meanwhile, US Customs and Border Protection (CBP) said they were reviewing this ruling – and would not comment on what the agency said are “pending criminal cases.”
