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Feds, you'll need a warrant for that cellphone border search

Here's a story with a twist

A federal district judge has ruled that authorities must obtain a warrant to search an American citizen's cellphone at the US border, barring exigent circumstances.

It is the first court in the United States to do so, to the delight of the Electronic Frontier Foundation, which along with other advocacy groups has been fighting for years to narrow the scope of border searches. Under current law, US Customs and Border Protection (CBP) can search anyone within 100 miles of an American national line, which covers a lot of people.

"EFF is thrilled about this decision, given that we have been advocating for a warrant for border searches of electronic devices in the courts and Congress for nearly a decade," said Sophia Cope, senior staff attorney, in a statement Tuesday.

Cope expressed hope that the US Second Circuit will adopt the lower New York court's interpretation if the case – United States vs. Smith (1:22-cr-00352-JSR) – is appealed.

The suck zone

Under the Fourth Amendment of the US Constitution, people in America should be protected from unreasonable search and seizure – specifically, searches conducted by authorities without probable cause. But there's a distance factor to be added in.

The CBP is afforded exceptional leeway to scrutinize the people and objects coming and going across the US border. The agency maintains [PDF] it can conduct warrantless searches at the border, an area that includes land border crossing points, seaports, and airports. And this border search exception, with some limitations requiring reasonable suspicion for invasive searches, has been supported by US courts.

The border however turns out to cover most of America in terms of population. Since 1953, the US Department of Justice has defined the border to be anywhere within 100 miles of the actual national limits.

According to the American Civil Liberties Union, about two-thirds of the people in the US live within 100 miles of a border. So in theory these 200 million border zone dwellers could have their phones seized and searched at any time by CBP agents without a warrant.

The issue came up last year in United States vs. Smith. CBP detained defendant Jatiek Smith upon his return to Newark airport in New Jersey from Jamaica, and forced the US citizen by threat of indefinite detention to surrender his cellphone and password – an act of coercion that in this instance, according to Judge Jed Rakoff of the Southern District of New York, does not violate the Fifth Amendment right against self-incrimination.

The agents reviewed the phone manually then imaged it without a warrant. Several weeks later, the government sought and obtained a search warrant. Smith sought to suppress the evidence gained from that search by claiming his rights were violated.

Judge Rakoff found Smith's Fourth Amendment argument against the search compelling, in light of the US Supreme Court's decision in Riley v. California (2014). In that case, the Supreme Court determined that police must get a warrant to search the cellphone of an arrested suspect. The Fourth Amendment protects against unreasonable searches and seizures.

"Copying and searching a traveler’s phone during a border crossing bears little resemblance to traditional physical border searches historically permitted without probable cause under the Fourth Amendment’s 'border search exception,'" Judge Rakoff wrote in his opinion and order [PDF].

"Rather, such searches extend the government’s reach far beyond the person and luggage of the border-crosser – as if the fact of a border crossing somehow entitled the government to search that traveler’s home, car, and office. The border search exception does not extend so far."

Crucially, the judge wrote:

As such, the court concludes that the government may not copy and search an American citizen's cellphone at the border without a warrant absent exigent circumstances.

If you're wondering whether that applies to non-citizens, the ruling added as a footnote: "The court need not here address whether the same result would hold for a non-resident or non-citizen."

The above was not enough to get Smith completely off the hook. Rakoff accepted that the CBP agents had acted in good faith – the agents believed they were authorized to conduct the search and later obtained a warrant – so he declined to suppress the evidence gathered from Smith's phone on that basis.

We ought to point out that Smith has been accused of running a brutal gangland extortion ring, hence the Feds' interest in him and the contents of his gadgets. According to prosecutors, Smith and others took over a Brooklyn-based company that cleans up fire-damaged properties, and then used that business "to extort other participants in the fire mitigation industry and to assert control over the industry using violence and threats of violence."

Smith is also a convicted sex offender and drug dealer who has been in and out of prison.

Nonetheless, it's reassuring to know the judiciary is warming to arguments that searching phones is different from searching luggage. ®

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