Good News

The EFF points us to the news that, for the first time ever, a judge has ruled that the border patrol cannot search cell phones without a warrant.

I don't know if this will survive the inevitable appeal, but, for as long as this remains in force it is a good thing:

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 smartphones, laptops, and other electronic devices that contain the equivalent of millions of pages of information detailing the most intimate details of our lives—even though we asked them to back in 2021.

I've always thought that a password escrow service that requires the assent of a lawyer would help, but a court ruling limiting the authority of CBP to do this is even better.