With United States v. Smith (S.D.N.Y. May 11, 2023), a district court judge in New York made history by being the first court to rule that a warrant is required for a cell phone search at the border, “absent exigent circumstances” (although other district courts have wanted to do so).
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. If the case is appealed to the Second Circuit, we urge the appellate court to affirm this landmark decision.
The Border Search Exception as Applied to Physical Items Has a Long History
U.S. Customs & Border Protection (CBP) asserts broad authority to conduct warrantless, and often suspicionless, device searches at the border, which includes ports of entry at the land borders, international airports, and seaports.
For a century, the Supreme Court has recognized a border search exception to the Fourth Amendment’s warrant requirement, allowing not only warrantless but also often suspicionless searches of luggage and other items crossing the border.
The number of warrantless device searches at the border and the significant invasion of privacy they represent is only increasing. In Fiscal Year 2022, CBP conducted an all-time high of 45,499 device searches.
The Supreme Court has not yet considered the application of the border search exception to smartph
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