A three-judge panel consisting of Second Circuit judges Steven J. Menashi and Eunice C. Lee and U.S. District Judge Hector Gonzalez, sitting by designation, ruled on Thursday that federal agents can search and photograph the contents of a traveler’s cellphone at the border without a warrant or reasonable suspicion of criminal activity.
The ruling cited the Supreme Court in U.S. v. Ramsey (1977), stating, “Searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border . . .”
In previous federal district court cases within the Second Circuit, U.S. v. Smith (2023) and U.S. v. Sultanov (2024), judges held that law enforcement needed a warrant before searching a suspect’s cell phone at the border. The Second Circuit rejected those rulings, stating, “The ‘longstanding recognition that searches at our borders without probable cause and without a warrant are nonetheless ‘reasonable’ has a history as old as the Fourth Amendment itself.’ United States v. Ramsey, 431 U.S. 606, 619 (1977).”
Chinwendu Alisigwe, a permanent resident of the United States, brought on the case after being convicted in 2024 of bank fraud and money laundering conspiracy and sentenced to five years in prison.
In 2018, the United Kingdom Border Task Force seized a fake South African passport bearing Alisigwe’s photograph and the name “Wilhelm Heintz” and shared it with the U.S. Department of Homeland Security (DHS), which launched an investigation.
Thursday’s ruling states that in 2019, the New York Document and Benefit Fraud Task Force of Homeland Security Investigations (HSI) and Customs and Border Protection (CBP) stopped and interviewed Alisigwe at John F. Kennedy International Airport in Queens, New York.
An officer scrolled through Alisigwe’s cell phone and photographed its contents. Officers found images of other people’s names, dates of birth, and Social Security numbers. Then, in 2021, officers again stopped Alisigwe at JFK Airport, scrolled through his phone, and photographed a WhatsApp conversation between Alisigwe and a co-conspirator.
Alisigwe argued that these searches violated his Fourth Amendment rights because no warrant was ever issued. The panel disagreed. The majority held that, “No suspicion is required before the government searches a traveler’s cellphone at the border. Nor does the First Amendment impose an independent warrant requirement for searches of cellphones at the border.”
While Judge Menashi explained that the officers had reasonable suspicion, he and Judge Gonzalez held that it was not required in the first place.
Judge Lee concurred in a separate opinion, agreeing “that neither a warrant nor probable cause is necessary to search a cellphone at an international airport . . .”
However, she rejected the majority’s broader conclusion that such searches require no reasonable suspicion. Lee criticized the majority’s willingness to “readily interpret the Fourth Amendment to accept the further (and seemingly inexorable) diminishment of our privacy by way of suspicionless cellphone searches at the border.”
While this is binding in the Second Circuit (New York, Connecticut, and Vermont), California already holds that manual cellphone searches of people crossing international borders may occur without reasonable suspicion; however, they must be tied to digital contraband, and more intrusive forensic searches of digital devices require reasonable suspicion.
The “border-search exception,” a U.S. constitutional doctrine allowing law enforcement to conduct routine searches and seizures at international borders and their functional equivalents without a warrant, probable cause, or individual suspicion, cannot be used to rummage through a traveler’s phone when looking for evidence of ordinary crime in California.
Customs and Border Protection’s description of digital contraband includes export-controlled information, illicit transfer of restricted or classified information, and child sexual abuse material (CSAM). This ruling was built on by Cano v. U.S. (2019), after a man named Miguel Cano was caught with cocaine in his vehicle at the San Ysidro border. Border agents manually and forensically searched his phone, and Cano was convicted.
However, the Ninth Circuit vacated his conviction after ruling that some of these searches violated his Fourth Amendment rights. While it was lawful to open Cano’s text message inbox, as it can be done to search for concealed images and digital contraband, they could not record telephone numbers and photograph messages to further their drug-trafficking investigation. Having grounds to arrest someone does not authorize searching all the digital information on their cell phone.
In Cano v. U.S. (2019), the court emphasized that agents at the border may not conduct warrantless, suspicionless border device searches “for evidence of past or future border-related crimes.”
The Ninth Circuit Court of Appeals is the largest of the 13 courts; this ruling applies to Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. It also covers two U.S. territories, Guam, and the Northern Mariana Islands.
The Electronic Frontier Foundation has a full guide on ways to protect your data when traveling across the border. This is not legal advice. Always consult your lawyer for specifics.
TO MINIMIZE THE DATA YOU CARRY ACROSS THE BORDER, THEY SUGGEST YOU:
- “Factory-reset your device, or leave your primary device at home and travel with a temporary device, such as a “burner” phone or an internet-based laptop. However, be aware that these might raise suspicion and lead to additional questioning, and cheaper and older devices are generally more vulnerable to forensic search.
- Delete sensitive data and apps from your device. Do not forget to empty the trash can and check for “recently deleted” folders in photos, browsers, and apps. However, be aware that even after removing an app, some data from it may be left over on the device.
- Transfer data to cloud storage, if you will have internet access to retrieve it later.”
TO PROTECT WHAT DATA YOU DO CARRY ACROSS THE BORDER, THEY SUGGEST YOU:
- “Backup your data before traveling.
- Enable full-disk encryption, not just a screen lock
- Use strong passcodes (4-5 random words). See https://eff.org/dice.
- Disable biometric unlocks (face/thumb).
- Power down your devices.”
“It’s unfortunate that the Second Circuit and many other courts fail to understand that any search of a cell phone is a significant invasion of personal privacy. The time is now for Congress to fill the gap left by the courts and to require a warrant for device searches at the border,” the Electronic Frontier Foundation tells L.A. TACO.
While California offers stronger digital protections, it’s still important to protect your cell phone’s data, no matter how likely you think you are to have your phone searched at the border or when arriving through an international airport.
