NEW YORK—The Knight First Amendment Institute at Columbia University and the Reporters Committee for Freedom of the Press today filed an amicus brief in federal court in a case addressing the constitutionality of warrantless electronic device searches at the border. The amicus brief argues that these searches violate the First Amendment’s protection of the freedoms of the press, speech, and association, as well as the Fourth Amendment’s protection against unreasonable searches and seizures. The groups filed in support of defendant Kurbonali Sultanov’s motion to suppress evidence obtained from his cellphone when he entered the U.S. at John F. Kennedy Airport in New York.
“Our cellphones and laptops store an enormous amount of private information, including our communications with friends and loved ones, our opinions and beliefs, our daily activities and movements, and the photos most dear to us,” said Scott Wilkens, senior counsel at the Knight First Amendment Institute. “The government’s claim that it can conduct warrantless searches of literally anyone’s cellphone at the border threatens the right to privacy and freedoms of speech and the press, and can’t be reconciled with the Constitution.”
In March 2022, Mr. Sultanov was stopped for questioning at John F. Kennedy Airport. He initially refused to provide the password to his cellphone but complied when officers told him he had no choice. Mr. Sultanov was soon after charged with possession of child pornography allegedly found on his phone. He pleaded not guilty and filed a motion to suppress the evidence obtained from the search of his phone, arguing that the search and seizure of his cellphone violated his Fourth Amendment rights.
Today’s brief argues that warrantless searches of electronic devices at the border violate the First and Fourth Amendment rights of all travelers and that they have especially far-reaching implications for the newsgathering rights of journalists, who are particularly vulnerable to the chilling effects of electronic device searches.
“Journalists traveling across the border should not have to fear that the government could—without court approval or reason to suspect a crime—sift through the sensitive work product and confidential source communications stored on their electronic devices,” said Grayson Clary, staff attorney at the Reporters Committee for Freedom of the Press. “The Constitution requires a warrant.”
The case is one of several legal challenges to warrantless searches of electronic devices at the border. In 2018, the Knight Institute and Reporters Committee filed an amicus brief in the First Circuit in Alasaad v. Mayorkas, arguing that warrantless searches of electronic devices violate the First Amendment. In 2022, the organizations filed an amicus brief in the Eighth Circuit in U.S. v. Xiang, arguing that warrantless searches of electronic devices violate both the First and Fourth Amendments. Although several federal circuit courts have held that warrantless searches of cellphones at the border are constitutional, other circuit courts, including the Second Circuit, have not yet addressed the issue.
Documents obtained through a Knight Institute Freedom of Information Act (FOIA) request show that border personnel often use their authority to conduct border searches as a pretext to scrutinize the sensitive expressive and associational content that travelers store on their devices. Read more about that case here.
Read today’s brief here.
Lawyers on the case include Scott Wilkens and Alex Abdo of the Knight First Amendment Institute, and Bruce D. Brown, Gabriel Rottman, and Grayson Clary of the Reporters Committee for Freedom of the Press.
For more information, contact: Lorraine Kenny, lorraine.kenny@knightcolumbia.org.