In the legal battle over warrantless cellphone searches at the border, press freedom is at stake

Federal law enforcement has long asserted broad latitude to search travelers’ electronic devices at the border without a warrant or suspicion of criminal activity — a power that’s been used to target journalists and intrude on First Amendment freedoms, including the right to gather the news.

Last month, the Reporters Committee for Freedom of the Press and the Knight First Amendment Institute at Columbia University jointly filed a friend-of-the-court brief urging a federal appeals court to consider the chilling effect these searches have on press freedom. It’s the fourth brief the two organizations have filed together on warrantless electronic device searches at the border in as many years.

We recently spoke with Reporters Committee Staff Attorney Grayson Clary about these searches and why the Reporters Committee is pushing back against federal agencies’ interpretation of the Fourth Amendment “border search exception” to access vast amounts of personal data found on individuals’ electronic devices.

This interview has been edited for length and clarity.

What makes a warrantless search of someone’s electronic device different from a warrantless search of another personal item someone might carry, like a purse? 

The scale of the risk that the power will be abused is just dramatically different. There’s not an enormous amount the Transportation Security Administration can do with the power to sort through your luggage to retaliate against the president’s political enemies, because at the end of the day, all they get to do is rifle through the clothes you brought with you. But the picture looks very different when you’re talking about unfettered discretion to search through somebody’s cellphone. 

If a reporter has written an article that the federal government doesn’t like, then in principle, the next time they happen to fly internationally, the Constitution — at least on the federal government’s account — doesn’t have anything to say about a border agent taking that opportunity to take a look at your phone, copy all of its contents, take a look at every communication you’ve had on there, every email, every text message with a source. That opens the door to vastly more risk of abuse or retaliation than you face when you’re talking about the power to search somebody’s physical belongings.

What implications do warrantless electronic device searches at the border have for press freedom?

If the federal government knows that a journalist is going to be crossing the border and it wants access to their communications — to discover who their sources are or to discourage particular lines of reporting — it can use the happenstance of their travel as a chance to use that border search authority to get access to sensitive conversations without a warrant. 

There was an important line of stories by NBC 7 San Diego that documented that the Department of Homeland Security did, in fact, maintain a secret database — listing journalists, activists, and others — that it flagged for extra attention if they crossed the southern border because of reporting that they were doing on migration. There were journalists who saw their devices seized in connection with that initiative to keep tabs on people who were doing work that the federal government was concerned about. 

Our concern is that if you don’t tighten up the rules in this context, if you don’t put a warrant requirement in between the government and the opportunity to fish through reporters’ communications, you have a recipe for a pretty grave, chilling effect on the kind of confidential reporter-source communications on which so much reporting about government depends.

Courts have sided with the government on some past cases contesting these searches, but in July, a federal district court in New York ruled that the government must obtain a warrant to search a cellphone at the border and cited the friend-of-the-court brief jointly filed by the Reporters Committee and the Knight Institute in that decision. Do you think courts are starting to recognize the danger of warrantless border searches? 

It’s easy to get into trouble trying to predict these things, but we are beginning to see more courts reach the conclusion that a warrant is required here. 

This is currently the subject of a really messy circuit split across the country. There are other courts that have said, “Well, maybe you at least need reasonable suspicion. You’ve got to have some individualized basis for doing it.” Some courts have said, “You can look for evidence for crime, but it has to be a border-related crime.” Other courts have said, “No, you can’t do it for evidence-of-crime purposes. It has to be for contraband-detection purposes.”

So I think everybody is wrestling hard with what the right set of rules here is, and I think it’s an issue that’s ultimately going to have to be settled by the Supreme Court. We hope that more courts do take the lead of these recent decisions in the Southern District of New York and the Eastern District of New York that have taken seriously the First Amendment interests that are at stake in this context.

So until the Supreme Court weighs in, there’s a patchwork of different rules governing warrantless border searches across the country?

Yes. So at the moment, it means that your constitutional rights in this context are going to differ depending on whether you’re flying through Los Angeles or LaGuardia or Dulles. I think at a certain point that’s going to be untenable for everybody. 

Journalists and other travelers deserve to know what their rights are going to be when they show up to the airport, and the federal government wants to know what the rules are going to be when it’s legitimately investigating border-related offenses. The only way we’re going to get that kind of uniform statement of the rule is from the Supreme Court.

What’s the best way you can protect yourself if you’re a journalist crossing the border?

Picking your airport carefully is, at the moment, one of the things that’s going to make a big difference as to whether or not you’re potentially targeted by a device search. Another is thinking carefully about whether you really need to bring a particular device with you, or whether that one can stay home while you bring a clean phone or laptop that’s not going to have as much sensitive information on it. 

And then knowing your rights and knowing when you’re being ordered to do something versus when you have room to say no if you think a request is inappropriate. You don’t want to be cajoled into consenting to searches that you don’t think are appropriate and that would intrude on the confidentiality of your contacts.

The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on X (Twitter) or Instagram.