Travelling to America? Border Agents Can Now Search Your Phone Without a Warrant

A US appeals court has upheld the authority of border officers to search travellers’ mobile phones without a warrant, probable cause or reasonable suspicion.

The ruling was issued on Thursday by the US Court of Appeals for the Second Circuit in the case of Chinwendu Alisigwe, a Nigerian-born lawful permanent resident whose phone was searched by border agents at John F. Kennedy International Airport in New York. Information obtained from the search contributed to Alisigwe’s conviction for bank fraud and money laundering. 

The three-judge panel unanimously upheld his conviction, although the judges differed over the wider constitutional issues raised by the case. Judge Steven J. Menashi, an appointee of former President Donald Trump, wrote the majority opinion. He was joined by Judge Hector Gonzalez, an appointee of President Joe Biden.

The majority held that mobile phones can be treated as property during border inspections and are therefore subject to routine searches, similar to searches of luggage or notebooks. The court rejected arguments that the US Supreme Court’s 2014 decision in Riley v. California should apply at the border. That ruling generally requires police to obtain a warrant before searching a mobile phone seized during an arrest.

The court also rejected arguments that the First Amendment provides additional protection for electronic devices. Civil liberties organisations, including the Knight First Amendment Institute and the Reporters Committee for Freedom of the Press, had argued that journalists face particular risks when their devices are searched because they may contain confidential sources and unpublished material.

The panel ruled that creating a separate constitutional standard for mobile phones would conflict with established rules governing searches at the border. Judge Eunice C. Lee, another Biden appointee, agreed with the outcome in Alisigwe’s case but expressed concerns about the broader implications of the majority’s reasoning.

Lee noted that modern smartphones can contain medical records, financial information, private communications, photographs and location histories. She said the amount and nature of information stored on a phone are significantly different from the contents of traditional luggage. Journalists, lawyers and activists can carry confidential sources, privileged communications and other sensitive material on their devices.

US Customs and Border Protection (CBP) has acknowledged conducting thousands of manual searches of electronic devices each year. The practice has faced several legal challenges, including cases involving travellers whose devices were searched or seized.

Thursday’s ruling strengthens the government's authority to conduct routine searches of mobile phones at the border, but it does not resolve all questions surrounding electronic searches. The Second Circuit specifically declined to decide whether more advanced forensic searches, which can involve extracting and analysing data from a device, require reasonable suspicion or a higher constitutional threshold. 

That issue remains open for future litigation. Border searches have traditionally been treated as an exception to the Fourth Amendment’s requirement for a warrant. The exception is based on the government’s authority to protect national security and prevent contraband from entering the country.