U.S. judge: customs agents need warrants to search phones, but only in New York

Back in 2021, a federal appeals court ruled that U.S. Customs and Border Protection (CBP) agents could search all travellers’ phones without a warrant — including Canadians going to the U.S. via air or land. However, a federal judge in New York has now ruled that CBP does need a warrant for searches.

As noted by The Verge, the new ruling technically only applies to New York’s Eastern District, which includes the John F. Kennedy Airport (the sixth-busiest in the U.S.). However, theoretically, the ruling applies to all land borders, seaports and airports.

The new ruling comes from a criminal case against Kurbonali Sultanov, who had filed a motion to suppress evidence obtained from searches of his phones based on the argument that the initial search performed by CBP at the airport was illegal under the Fourth Amendment. The Verge has an excellent breakdown of the details of the case, but the main takeaway is that Judge Nina R. Morrison agreed with Sultanov on Fourth Amendment grounds and found the initial search of his phone was unconstitutional. (Morrison, however, denied the request to suppress the evidence from Sultanov’s phones since investigators acquired warrants for subsequent searches.)

Morrison cited the 2021 ruling and other similar cases where judges allowed forensic examinations of cell phones as nonroutine and wrote:

“This Court respectfully concludes otherwise. Particularly in light of the record before this Court regarding the vast potential scope of a so-called ‘manual’ search, the distinction between manual and forensic searches is too flimsy a hook on which to hang a categorical exemption to the Fourth Amendment’s warrant requirement. And it is one that may collapse altogether as technology evolves.”

While the scope of the ruling is limited geographically, it could have wider implications as CBP phone searches face increased scrutiny. Many people, including Morrison, have raised concerns about warrantless phone searches and the potential impact on freedom of the press, political opposition and more. Others have raised concerns about what information the government saves from these searches and how it uses the data.

Across the U.S., CBP has conducted over 230,000 electronic device searches between 2018 and 2023.

Header image credit: CBP

Source: The Verge