The Supreme Court recognized that cellphones were different in Riley v. California. The Second Circuit Court of Appeals, with both JFK airport, among others, within its jurisdiction, hadn’t yet joined the fray as district judges around the country tried to figure out whether cellphone at borders were controlled by the law as it applied to cellphones or as applied to borders. It’s now made its decision.

We do so now. First, we conclude that the district court properly denied Alisigwe’s motion to suppress evidence obtained at the border. Contrary to the district court’s reasoning, however,
reasonable suspicion was not required. 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).

“The border-search exception is grounded in the recognized right of the sovereign to control, subject to substantive limitations imposed by the Constitution, who and what may enter the country.” Id. at 620. Because “[t]he Government’s interest in preventing the entry of unwanted persons and effects is at its zenith at the international border,” United States v. Flores-Montano, 541 U.S. 149, 152 (2004), “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,” Ramsey, 431 U.S. at 616.

Too long to read? I’m here for you. You’re screwed. Distinguishing Riley, the court held that a border search is a border search is a border search, and when you choose to cross a border, you agree to have your cellphone searched. No warrant needed. No probable cause. Not even reasonable suspicion. They can do it just because.

This is not good. Not good at all. Really bad, actually. Those pictures on your cellphone, the ones meant only for you and your beloved? Your bank information? Your health information? The personal info that we all have on our phones these days? The personal info of others given to us in the strictest confidence? It’s all theirs to see when you cross the border.

Consider the ramifications. If you’re engaged in kiddie porn or IP theft, they can find it. Then again, if you’re an attractive woman, they may just check your pics just in case you sent something spicy to someone special. They don’t need a reason. They don’t need to explain. They just can because the court said so.

Then there’s the border problem. Absurd as it seems, the border extends 100 miles inland from anything actually resembling a border. But it’s still a border, and if it’s still a border, they can do a border search.

Can you refuse to unlock your cellphone? Perhaps, but that doesn’t mean they won’t seize it, or worse yet, deny you entry. The one thing you can be assured of is that it won’t be so simple as to just say no and walk away.

As explained in Judge Eunice Lee’s concurrence, the underlying case presented an unfortunate vehicle for the majority’s broad holding.

The border-search rationale as an exception to the Fourth Amendment prohibition against warrantless searches and seizures was aimed primarily at the right of the federal government to search the person and personal effects of those entering the country, for the purpose of controlling the admission of contraband and persons not lawfully permitted admission. At the time of its creation, no item remotely comparable to the modern cellphone existed or was contemplated as a target of search. Today, despite a cellphone’s dissimilarity to the types of property for which the exception was created, the majority holds that law enforcement may search through the data on any international traveler’s cellphone—perhaps the single most comprehensive, sensitive and closely-guarded repository of a person’s private information and data—with no suspicion and for any reason (including political or discriminatory ones), without implicating constitutional rights. While I agree that neither a warrant nor probable cause is necessary to search a cellphone at an international airport, which is the only basis on which Alisigwe seeks suppression of the evidence seized as a result of the cellphone searches in this case, I disagree with the majority’s additional and broad conclusion that such searches are “routine,” requiring neither reasonable suspicion, nor any other kind of individualized suspicion. Accordingly, I concur only in the court’s judgment.

The notion of suspicionless border searches was quite different when the only property available for routine search was pockets and suitcase. As Judge Lee recognizes, just as the Supremes recognized it in Riley, there was nothing analogous to a cellphone then, containing essentially everything personal and private about a person that we carry around in our pocket wherever we go. Including across borders.