Federal agents may search a traveller's mobile phone at the US border without a warrant, without probable cause and without any particular suspicion, a divided federal appeals court has ruled.
In United States v. Alisigwe, decided 2–1, the US Court of Appeals for the Second Circuit wrote that 'no suspicion is required before the government searches a traveler's cellphone at the border'. The decision covers New York, Connecticut and Vermont and contradicts rulings by lower district courts in the circuit.
The court leaned on the Supreme Court's 1977 decision in United States v. Ramsey — a case about heroin mailed from Thailand — and through it on an older 1925 precedent, reasoning that what counts as an 'unreasonable search and seizure' under the Fourth Amendment is judged against expectations at the time the amendment was ratified in 1791. Because border searches have long been treated as reasonable, the court held, the constitutional protection effectively does not apply there.
The ruling deepens a split among circuits. The Ninth Circuit also permits suspicionless manual searches of devices but limits them to the hunt for digital contraband such as child sexual abuse material, and requires reasonable suspicion for forensic examinations. The Second Circuit declined to answer the forensic question in this case, but its majority suggested that manual searches conducted without suspicion could themselves generate suspicion for a deeper look.
In dissent, the third judge accused the majority of effectively abolishing the Fourth Amendment in the border context, warning that any traveller returning from holiday or business could be subjected to 'an examination of their medical records, financial data, personal messages, search and browsing habits, movement patterns and other private information'. With Congress repeatedly failing to legislate and the Supreme Court declining to take up a related case last year, the practical scope of border device searches remains unsettled.
