Courts Close the Loophole Letting the Feds Search Your Phone at the Border
For years, courts have ruled that the government has the right to conduct routine, warrantless searches for contraband at the border. Customs and Border Protection (CBP) has taken advantage of that loophole in the Fourth Amendment's protection against unreasonable searches and seizures to force travelers to hand over data from their phones and laptops.
But on Wednesday, Judge Nina Morrison in the Eastern District of New York ruled that cellphone searches are a "nonroutine" search, more akin to a strip search than scanning a suitcase or passing a traveler through a metal detector.
Although the interests of stopping contraband are "undoubtedly served when the government searches the luggage or pockets of a person crossing the border carrying objects that can only be introduced to this country by being physically moved across its borders, the extent to which those interests are served when the government searches data stored on a person's cell phone is far less clear," the judge declared.
Morrison noted that "reviewing the information in a person's cell phone is the best approximation government officials have for mindreading," so searching through cellphone data has an even heavier privacy impact than rummaging through physical possessions. Therefore, the court ruled, a cellphone search at the border requires both probable cause and a warrant. Morrison did not distinguish between scanning a phone's contents with special software and manually flipping through it.
