“As the court recognizes, warrantless searches of electronic devices at the border are an unjustified intrusion into travelers’ private expressions, personal associations, and journalistic endeavors—activities the First and Fourth Amendments were designed to protect,” said Scott Wilkens, senior counsel at the Knight First Amendment Institute. “The ruling makes clear that border agents need a warrant before they can access what the Supreme Court has called ‘a window onto a person’s life.”

Sultanov was stopped for questioning at John F. Kennedy Airport in March 2022. He initially refused to provide the password to his cellphone but complied when officers told him he had no choice. The officers searched the cellphone manually at JFK, and subsequently searched the phone forensically after obtaining a warrant. In a subsequent criminal case in the Eastern District of New York, Sultanov filed a motion to suppress the evidence obtained from his phone, arguing that the warrantless search of the device at JFK, and the later forensic search, violated his Fourth Amendment rights. 

The court held that the warrantless search of Sultanov’s cell phone at JFK violated the Fourth Amendment, but ultimately denied his motion to suppress because the court concluded that the government acted in good faith.

The court also held that border searches of electronic devices burden core First Amendment rights, including freedom of speech, freedom of religion, freedom of association, and freedom of the press. In reaching this conclusion, the court relied on records obtained by the Knight Institute through a Freedom of Information Act (FOIA) lawsuit, which describe travelers’ experiences with electronic device searches at the border. Read more about that lawsuit here.

The court also explained that these searches chill communications between reporters and their sources, again pointing to the amicus brief filed by the Knight Institute and Reporters Committee for Freedom of the Press, which detailed the experiences of numerous journalists who when entering the U.S. were flagged for secondary inspection and were required to surrender their electronic devices for warrantless searches.

“As the court recognized, 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 Grayson Clary, staff attorney at the Reporters Committee for Freedom of the Press. “This thorough opinion provides powerful guidance for other courts grappling with this issue, and makes clear that the Constitution would require a warrant before searching a reporter's electronic devices.”

Read the ruling here.

Lawyers on the case include Scott Wilkens and Alex Abdo of the Knight First Amendment Institute, and Bruce D. Brown, Gabriel Rottman, and Grayson Clary of the Reporters Committee for Freedom of the Press. 

For more information, contact: Adriana Lamirande, adriana.lamirande@knightcolumbia.org

“Our cellphones and laptops store an enormous amount of private information, including our communications with friends and loved ones, our opinions and beliefs, our daily activities and movements, and the photos most dear to us,” said Scott Wilkens, senior counsel at the Knight First Amendment Institute. “The government’s claim that it can conduct warrantless searches of literally anyone’s cellphone at the border threatens the right to privacy and freedoms of speech and the press, and can’t be reconciled with the Constitution.”

In March 2022, Mr. Sultanov was stopped for questioning at John F. Kennedy Airport. He initially refused to provide the password to his cellphone but complied when officers told him he had no choice. Mr. Sultanov was soon after charged with possession of child pornography allegedly found on his phone. He pleaded not guilty and filed a motion to suppress the evidence obtained from the search of his phone, arguing that the search and seizure of his cellphone violated his Fourth Amendment rights. 

Today’s brief argues that warrantless searches of electronic devices at the border violate the First and Fourth Amendment rights of all travelers and that they have especially far-reaching implications for the newsgathering rights of journalists, who are particularly vulnerable to the chilling effects of electronic device searches. 

“Journalists traveling across the border should not have to fear that the government could—without court approval or reason to suspect a crime—sift through the sensitive work product and confidential source communications stored on their electronic devices,” said Grayson Clary, staff attorney at the Reporters Committee for Freedom of the Press. “The Constitution requires a warrant.”

The case is one of several legal challenges to warrantless searches of electronic devices at the border. In 2018, the Knight Institute and Reporters Committee filed an amicus brief in the First Circuit in Alasaad v. Mayorkas, arguing that warrantless searches of electronic devices violate the First Amendment. In 2022, the organizations filed an amicus brief in the Eighth Circuit in U.S. v. Xiang, arguing that warrantless searches of electronic devices violate both the First and Fourth Amendments. Although several federal circuit courts have held that warrantless searches of cellphones at the border are constitutional,  other circuit courts, including the Second Circuit, have not yet addressed the issue. 

Documents obtained through a Knight Institute Freedom of Information Act (FOIA) request show that border personnel often use their authority to conduct border searches as a pretext to scrutinize the sensitive expressive and associational content that travelers store on their devices. Read more about that case here.

Read today’s brief here.

Lawyers on the case include Scott Wilkens and Alex Abdo of the Knight First Amendment Institute, and Bruce D. Brown, Gabriel Rottman, and Grayson Clary of the Reporters Committee for Freedom of the Press. 

For more information, contact: Lorraine Kenny, lorraine.kenny@knightcolumbia.org.