Court rules border agents can no longer search electronic devices without a warrant

Transcript

STEVE INSKEEP, HOST:

A federal court has ruled that border agents can no longer search electronic devices without a warrant. The ruling in New York does not yet apply nationwide, but does apply to the very, very busy John F. Kennedy International Airport. People showing up there with a phone can no longer be told to just give it over to the immigration agents. The court did rule that warrantless searches violate the constitutional protections against unreasonable searches and seizures. Scott Wilkens has been following this case, and has a point of view about it. He is senior counsel at the Knight First Amendment Institute, which filed a friend of the court brief in this case. Good morning, sir.

SCOTT WILKENS: Good morning, Steve. It's great to be with you.

INSKEEP: I imagine a lot of people hadn't thought about this before, so what has the rule been up to now? What could a border agent do with me if I'm arriving in the country from somewhere else?

WILKENS: Yeah. Since about the end of the George W. Bush administration, the government has claimed that it has the authority to stop you and to search your cellphone, your tablet, your computer, for any reason. The government doesn't need to suspect you of any wrongdoing. It can simply pull you aside and go through all of the incredible amount of information that you carry with you on those devices, and I think that...

INSKEEP: Wait a minute. Many people, of course, if they have, you know, an iPhone, you've got that password to get in. Are you forced to give up your password and actually open the phone?

WILKENS: Yes. The government claims that it can force you to provide the password and open the phone.

INSKEEP: And if you don't, they don't let you in the country, I guess.

WILKENS: More or less. That's what they - at least in the - we've heard that's what they say, and as a result, travelers give them what they require.

INSKEEP: OK. So what does this ruling mean, at least in the Eastern District of New York, where it took place?

WILKENS: The ruling, you know, means that these warrantless searches can no longer occur. Now, the ruling may very well be appealed, so it's not clear what even the immediate impact of the ruling is, but we certainly hope that the judge's very careful reasoning here is adopted more broadly, and I think this issue will eventually go to the Supreme Court.

INSKEEP: So you approve of this ruling?

WILKENS: Yes. This is - it's very carefully reasoned, carefully thought-out, and the judge gives very good reasons to think that, I think as we all know, cellphones are fundamentally different from other physical items we may have with us when we pass through the border and that searching through one of these devices is just an incredible intrusion into our personal privacy.

INSKEEP: Let me just ask what I'm sure is the pushback question here. You mentioned the George W. Bush administration. So we're stretching back to the days of what was then called the war on terror. And authorities are still concerned about who enters the United States and what they might be doing, or even what they might be planning or thinking. Why is it not reasonable for an authority to just say, let me see; let me make sure there's nothing suspicious here?

WILKENS: Well, I think what the Constitution requires is that the government - the courts require that the government balance the interest that they have in searching your phone, which is to prevent various kinds of unlawful activity, against the privacy interests, the First Amendment free speech interests, at stake, and that's what has not happened here. And I think, you know, everyone needs to know that it's actually - a warrant can be obtained very quickly, sometimes within a matter of 10-15 minutes, from a judge, and so this is not a big obstacle that's being placed here into the government's ability to enforce the law.

INSKEEP: Useful bit of context. Scott Wilkens, thanks so much.

WILKENS: It's great to be with you. Thank you, Steve.

INSKEEP: He's senior counsel at the Knight First Amendment Institute, which supports a court ruling in New York on searches of cellphones on the way into the country. Transcript provided by NPR, Copyright NPR.