A federal judge ruled that a phone search at a U.S. port of entry without a warrant violates the Fourth Amendment of the U.S. Constitution. The Fourth Amendment provides protection against unreasonable search and seizure by the U.S. government. However, the amendment does not limit all searches and seizures, solely those that are deemed unreasonable under the law. In the latest ruling from a federal judge in New York, Customs and Border Protection (CBP) agents are not allowed to search travelers’ phones unless they have a warrant.
The phone search ruling theoretically applies to airports, seaports, and land borders. However, in practice, the ruling only applies to New York’s Eastern District at this time. This district includes John F. Kennedy Airport in Queens, New York. Across the U.S., over 230,000 searches have been completed by CBP between 2018 and 2023.
In 2021, a U.S. Court of Appeals ruled that CBP agents can search devices, including phones, without a warrant. Further, that ruling found reasonable suspicion is not required in order to complete a search. The 2021 ruling overturned a previous ruling that found such unfounded searches a violation of the Fourth Amendment.
In the New York federal judge finding, the judge recognizes that previous court’s finding but disagrees with it. The fundamental question is whether forensic searches require a reasonable suspicion or basis. At question is whether the search of devices is considered a basic border search and therefore routine or if suspicion is required in order for CBP agents to demand devices are given to them for search.
Travelers’ phone search is increasingly under scrutiny. A bipartisan group of senators requested information on what data the government retains from such searches to the Homeland Security Secretary. They also asked how the information is used.
As always, ILBSG actively monitors ongoing court findings to ensure our clients are aware of developing issues. If you have questions about international travel with a visa or any other U.S. immigration related issue, contact us. Our team of experienced attorneys work directly with our clients to ensure they get the right advice.
