Travelling to America? Your phone can now be searched at US borders without suspicion

The case involved Chinwendu Alisigwe, a lawful permanent resident whose phone was searched at John F. Kennedy International Airport in New York. Agents found evidence on the phone, and Alisigwe was later convicted of bank fraud and money laundering. 

The appeals court panel ruled on Thursday that border officers can carry out manual searches of phones without getting a warrant or having individualised suspicion. 

What did the court rule? 

Judge Steven J. Menashi, an appointee of President Donald Trump, wrote the majority opinion. Judges Hector Gonzalez and Eunice C. Lee, both appointed by President Joe Biden, were also on the panel. 

The court said mobile phones can be treated as property during border searches. This means they can be considered “routine” searches, similar to checking other personal belongings such as suitcases and notebooks. 

The judges rejected arguments that the US Supreme Court’s 2014 decision in Riley v. California should apply in this situation. 

The Supreme Court had ruled that police generally need a warrant to search a person’s phone after an arrest. However, the appeals court said that protection does not extend to searches carried out at the US border.

The panel also said the First Amendment does not create a separate requirement for border officers to get a warrant before looking at information stored on a phone.

Biden-appointed judge raises concerns

Although all three judges agreed that Alisigwe’s conviction should stand, Judge Lee disagreed with the majority’s broader constitutional reasoning.

She argued that modern smartphones contain huge amounts of deeply personal information and should not automatically be treated like luggage or other belongings carried across the border.

Lee pointed out that people returning from a holiday or business trip could have medical records, financial information, private messages and location data stored on their phones.

Under the reasoning adopted by the majority, she said, all of this information could be browsed by a border officer.

Civil liberties groups raise First Amendment concerns 

According to Newsweek, the Knight First Amendment Institute and the Reporters Committee for Freedom of the Press were closely involved in the case.

The groups argued that searches of electronic devices at the border can expose sensitive information belonging to journalists and should receive stronger protection.

However, the Second Circuit rejected that argument. The court said the First Amendment does not provide a special rule for phones or other electronic devices at the border. 

The court also said giving electronic devices greater protection than other belongings would not be consistent with existing border-search rules. 

The issue has drawn attention as several cases involving journalists having their devices searched or seized have emerged over the past 19 months. Some journalists have also faced immigration enforcement action, raising concerns about their First Amendment rights. 

US Customs and Border Protection (CBP) data has shown that officers have carried out thousands of manual searches of electronic devices each year in recent years.

The agency has also faced several legal challenges over the practice. However, the latest ruling does not settle every question around phone searches at the border.

What the court did not decide

The appeals court’s ruling is limited to manual searches of phones.

The judges did not decide whether officers need reasonable suspicion or stronger constitutional protection to carry out more advanced forensic searches.

These can include deeper searches that involve extracting data from a device.

That question remains open, leaving courts across the US to consider whether such searches should require at least reasonable suspicion or a higher level of constitutional protection.