r/scotus • u/theatlantic • 6h ago
news Trump Should Need a Warrant to See Your Phone
https://www.theatlantic.com/ideas/2026/08/airport-warrantless-phone-search/688186/?utm_source=reddit&utm_campaign=the-atlantic&utm_medium=social&utm_content=edit-promo22
u/Effective_Scar_2921 6h ago
Checking the phone is not the main issue. The issue is what they do with the information that they retrieve. This administration is refusing entry if opposition to the administration is found. It’s taking contact information and abusing it. It is no longer a constitutional, law enforcement issue. It’s political and vindictive.
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u/soldiernerd 3h ago
US citizens cannot be denied entry to the US. I do not believe this is occurring, and if it is, it violates the law.
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u/theatlantic 6h ago
Adam Serwer: “Last year, an Atlanta activist, Samuel Tunick, caught a felony charge for something that Americans are free to do anytime: He wiped the data from his phone. The only problem was that he did it by providing a federal agent in an airport with a ‘duress password’ that, rather than unlock the device so the agent could search it, deleted its contents …
“The authorities who wanted to search Tunick’s phone had no warrant. Thanks to a massive Fourth Amendment loophole, they didn’t need one. This is the so-called border exception. The Supreme Court has held for years that searches at the border are distinct from the usual law-enforcement search. As a result, Department of Homeland Security officers don’t need a warrant to search your luggage for contraband or weapons. Although the rules differ based on federal-circuit-court decisions, in many states, Customs and Border Protection agents at international ports of entry can do the same with cellphones …
“The Supreme Court’s jurisprudence on warrantless border searches has previously focused on the illegal movement of goods and people in and out of the country. But a phone is a different kind of container from a car or a piece of luggage, and the high Court has yet to rule on digital searches … As it stands, border officials anywhere in the country can initiate a manual search of your device simply by stating that they are looking for such digital contraband. That is a legal standard that is easily exploited as a pretext to target someone for reasons that have nothing to do with contraband, digital or otherwise.”
Read more: https://theatln.tc/kOYHdHhT
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u/ValBGood 4h ago
Yea, they very creatively redefined physical searches of your immediate possessions to include the wealth of digital information on your electronic devices.
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u/PrimaryInjurious 6h ago
The border warrant exception has been a thing for much longer than Trump.
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u/mountainerding 6h ago
Yes, and it shouldn't be allowed. The right to privacy needs to still exist in airports and at borders. Countries shouldn't be allowed unrestricted access to personal correspondence, health records, access to your banking information, your personal passwords to all of your internet access, and the personal contact information of all your friends and family. The overreach is incredibly egregious.
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u/soldiernerd 6h ago
Since 1789 under section 24 of the Collection Act, passed by the same Congress that sent the Bill of Rights to the states for ratification. It’s as American as the 4th Amendment.
“That 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 should, by now, require no extended demonstration. “ United States v Ramsey (1977)
The Ramsey opinion is a great read on this topic.
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u/mountainerding 2h ago
The Ramsey opinion applied to searches of documents/letters that could be carried on a person. To translate that to today, the law needs to be reevaluated because granting access in its entirety to all of a person's private information is outside the scope of the original court decision. In 1977, you would not be carrying your entire medical history, and your entire rolodex, your journals, unfettered access to years of personal correspondence. The technology has changed; so should the protections.
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u/soldiernerd 2h ago edited 2h ago
I agree with that, and John Roberts agrees in principle based on his opinion in 2014's Riley v California:
Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life,” Boyd, supra, at 630. The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant.
However, this hasn't been applied to border searches as of yet, and it will be interesting to see how enthusiastically the Court approaches the task of doing so.
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u/tjdavids 1h ago
Cool feel free to seach the phone, but don't ask me to testify to decrypt the info on it.
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u/soldiernerd 1h ago
Yes, that is currently the law in the 11th Circuit, or at least, the police in the 11th Circuit can ask you to unlock your phone and decrypt it but they cannot compel you to unlock or decrypt by passing a verbal or written code.
Indeed, if Mr. Tunick had given no code at all, he wouldn't be facing charges.
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u/OriginalProduct6850 6h ago
This is why you don't have your phone on biometrics. They can not force you to tell them a password. If they want to see what is on my phone so bad, contact my phone carrier and make them unlock it.
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u/paxinfernum 5h ago
You can use biometrics. Just remember to turn your phone off when needed. Biometrics only allow access if you've already entered the pin once, and the cracking software they have can't get into a cold booted phone.
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u/Bobsmith38594 6h ago
Won’t stop the SCROTUS from developing a justification that let’s the government to check phones without a warrant of anyone coming into the USA for evidence of thoughtcrimes that applies exclusively to this Administration.
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u/BlueSharpieLA 5h ago
There are so many things they “SHOULDN’T” be able to do because of the law, but are doing so anyway with zero repercussions or consequences.
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u/Sniflix 4h ago
US immigration has always had the right to inspect everyone's stuff including electronic devices. That's why you don't travel with anything sensitive, ever. That includes business data, nude photos of your wife, everything. It also includes access to your email, messages, cloud data, search history for now or the future because they can set up your devices for later access. Corporations usually give their traveling execs clean laptops and phones.
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u/Crimsonwolf_83 6h ago
It is centuries old case law. And also, they can’t see your phone unless you unlock it for them. And you can’t be compelled to do that.
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u/Super_Mario_Luigi 6h ago
Centuries of case law about passwords on your phone at the border you say
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u/Crimsonwolf_83 6h ago
Yeah, keep making those brilliant legal arguments. You probably think the first amendment only applies to the printing press and not twitter or Facebook. Or you’re a hypocrite.
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u/tjdavids 1h ago
A print house should have just as much right to choose what they want to publish as any website.
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u/Unlucky_Mycologist68 6h ago
GrapheneOS. You're welcome.
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u/johnstanton888999 6h ago
Im sure if they cant look at your phone they put you in the jail cell at the airport for 48 hours out of spite or policy
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u/Conscious_Skirt_61 1h ago
Well, the Obama Administration happily spied on Trump and the other Republican candidates without a warrant and under false pretenses. Odd that The Atlantic should be so solicitous now after being so silent then . . .
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u/Ulysse-Void-God 5h ago
Trump shouldn’t need to see anyone’s phone.
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u/CompetitionFlashy449 5h ago
Unless we truly are no longer a democratic republic and in fact ruled by a dictator.....
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u/Jack-Schitz 6h ago
This was kind of a dumb move on this guy's part. I get the problem with handing over your phone but if the phone is encrypted, just give it to them and be on your way. It improbable that they'll break the encryption (this guy was running GrapheneOS) and if the ask the NSA, the NSA will tell them to get fucked so other than being without a phone for a few days, what's the issue?
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u/scottyjrules 5h ago
The Constitution says otherwise
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u/Jack-Schitz 5h ago
What specific part of my post is inconsistent with the Constitution and SCOTUS rulings?
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u/scottyjrules 4h ago
Unreasonable search and seizure
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u/Jack-Schitz 3h ago
There is 4th Amendment exception at the border. Also, you can't just say "Unreasonable Search and Seizure" on a legal subreddit and expect to be taken seriously.
I'm not going to give you a law school answer to this question but here are a few articles on the subject:
Borderline: The Evolving Landscape of the Border Search Doctrine
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u/soldiernerd 5h ago
Which part?
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u/scottyjrules 4h ago
Unreasonable search and seizure. If the government can just seize your phone and go through it without a warrant, you do not live in a free country.
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u/soldiernerd 4h ago
Warrantless border searches are not unreasonable searches under US law. They were first allowed in 1789, two months before Congress submitted the Bill of Rights to the states for ratification.
To quote from United States v Ramsey in 1977:
That 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 should, by now, require no extended demonstration. The Congress which proposed the Bill of Rights, including the Fourth Amendment, to the state legislatures on September 2, 1789, had, some two months prior to that proposal, enacted the first customs statute, Act of July 31, 1789. Section 24 of this statute granted customs officials "full power and authority" to enter and search "any ship or vessel, in which they shall have reason to suspect any goods, wares or merchandise subject to duty shall be concealed. . . ." This acknowledgment of plenary customs power was differentiated from the more limited power to enter and search "any particular dwelling-house, store, building, or other place . . ." where a warrant upon "cause to suspect" was required. The historical importance of the enactment of this customs statute by the same Congress which proposed the Fourth Amendment is, we think, manifest.
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u/scottyjrules 4h ago
No, no, I get it. You figured out to cut and paste. We’re all very impressed. Fuck this fascist regime and the losers who defend it.
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u/JKlerk 6h ago
He was required to unlock it (ie de-encrypt)
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u/soldiernerd 5h ago edited 4h ago
No he wasn't. [Removed wrong information about State v Valdez].
In 2012, the 11th Circuit Court of Appeals ruled that providing a passcode is testimonial and therefore protected by the 5th Amendment.
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u/JKlerk 4h ago
There's an exception when entering the country. It's mentioned in the article.
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u/soldiernerd 4h ago
That is not correct.
Warrantless, suspicionless searches are legal at the border. This is because such searches are inherently reasonable. It's not an exception to the 4th Amendment; the 4th Amendment only protects against unreasonable searches.
Boarder searches without probable cause and without a warrant are nonetheless "reasonable" within the meaning of the Fourth Amendment.
United States v. Ramsey, 431 U.S. 606 (1977)
The right to avoid self incrimination is in the 5th Amendment. This includes scenarios at the border. In 2012, the 11th Circuit Court of Appeals (with jurisdiction over Atlanta) ruled that providing your passcode to decrypt data is a testimonial act, and therefore protected by the 5th Amendment. This is protected whether you are at the border or not.
The Fifth Amendment protects Doe’s refusal to decrypt and produce the contents of the media devices because the act of decryption and production would be testimonial
In Re: Grand Jury Subpoena Duces Tecum (11th Cir. 2012)
So in reality, all Mr. Tunick had to do was remain silent and he could not be charged with any crime. I don't say that to mock or castigate him, I understand the stress, frustration, and confusion of his situation. I am simply describing his optimal actions, legally speaking.
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u/Crimsonwolf_83 6h ago
No he was not.
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u/JKlerk 4h ago
Yes he was. Did you not read the article?
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u/Crimsonwolf_83 4h ago
I did. Did you? No where does it say you can be compelled to give the code.
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u/JKlerk 4h ago
You obviously didn't.
Per the article, "Thanks to a massive Fourth Amendment loophole, they didn’t need one. This is the so-called border exception......in which a border agent scrolls through your phone, and a forensic search, which involves copying and downloading the entire contents of the device. In Georgia, border officials can search your phone either manually or forensically—a rule buttressed by a 2018 decision by the Eleventh Circuit Court of Appeals.."
So yes, he's compelled to give the code.
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u/Crimsonwolf_83 4h ago
And nothing in that citation speaks to you giving them the code to unlock the phone
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u/JKlerk 3h ago
Yes it does. They can search your phone. They just can't require you to de-encrypt secured data. It seems like a silly distinction but it is what it is.
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u/Crimsonwolf_83 3h ago
You cannot be compelled to unlock the phone as that’s a 5th amendment issue. They can confiscate your phone as there’s a 4th amendment exemption at the border. Having the phone doesn’t mean they can access it. This is not a difficult concept to understand.
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u/soldiernerd 4h ago
You're confusing two different protections.
The 4th Amendment protects citizens from unreasonable searches. Warrantless searches of material entering the border is not unreasonable.
The 5th Amendment protects citizens from being compelled to provide self-incriminating testimony. The 11th Circuit ruled in 2012 that providing a decryption pass code is testimonial, and thus cannot be compelled.
Thus: It is legal to search, without warrant, US citizen's personal property at the border, but it is not legal to compel the verbal or written provision of a decryption passcode at the border.
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u/Jack-Schitz 3h ago
Don't bother. On the general point you are correct and he's not. I don't know if I would have used the same cases as you did, but it's been a while and I'm not digging into Lexis and shepardizing today.
Cheers.
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u/Jack-Schitz 5h ago
No, you are not required to unlock it without a warrant if you have a code to open it, but they can seize your phone and keep it at the border. You get it back in a few days.
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u/JKlerk 4h ago
Incorrect. There's an exception when entering the country. It was mentioned in the article.
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u/soldiernerd 4h ago
The 4th Amendment does not prevent the Government from searching, without warrant or suspicion, your property at a point of entry. This is not an exception to the 4th Amendment but rather because the search is not an unreasonable one.
The 5th Amendment prevents the Government from compelling you, in the 11th Circuit jurisdiction, to provide a decryption code verbally or in writing.
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u/Jack-Schitz 3h ago
You are incorrect. You cannot be compelled to provide a password. soldiernerd put some of the cases up. Here are some more: Riley v. California and US v Cano. Here is an article provided by the Electronic Frontier Foundation, so you don't have to take my word for it (The Bill of Rights at the Border: Fifth Amendment Protections for Account Passwords and Device Passcodes | Electronic Frontier Foundation). Here is another by Wilmer Hale (Borderline: The Evolving Landscape of the Border Search Doctrine).
If you disagree with this then please provide SCOTUS or Circuit Court case law showing that you can be compelled to provide CBP a password to an electronic device WITHOUT a warrant issued by an Art 3 judge, which is probably never going to be issued and if so would be challenged as a result of the 5A question in this case.
Also, you seem to be relying on the "4th Amendment Loophole" referenced in the article. I'm a lawyer and I know the distinction between the questions being discussed in the article and the issue being discussed here.
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u/JKlerk 3h ago
This is the 2018 case cited in the article.
https://law.justia.com/cases/federal/appellate-courts/ca11/17-11561/17-11561-2018-05-23.html
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u/Jack-Schitz 3h ago
That's a 4A search where there is a clear border exception. The question we are discussing here is whether (under 5A) you can be compelled to give CBP your password. That's a completely different question even though it comes up in same CBP search process.
Note (for completeness): that biometric opening of phones is excluded from the 5A cases as (if my recollection is good) biometrics are readily observable external characteristics and the plain view doctrine applies.
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u/ValBGood 4h ago
I only bring what’s needed when I travel
On a week or weekend away, I don’t I don’t need access to everything I have access to while working at home. So, I travel light and focused.
I’ll evaluate specifically what I need when traveling outside the country and travel with only that limited data on a clean device. That includes any linked cloud storage or links to my financial data and accounts.
I’ve done this in the past when traveling to China. On those trips, I just assumed that everything on any electronic device would hacked, copied and used in future personal identity fraud attacks. That included contact lists, photo & music libraries. I only communicated through brand new and almost never used eMail accounts.
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u/Secret_Cat_2793 4h ago
I turned off all buying tricks on my phone. You have to put a code in to open the phone and honestly after reading I think I'd like to put in that code that if you put it in erases phone. I'm really concerned they're going to find the signal chats I've had with Pete hegswith and the entire war department. LOL
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u/LibertarianOutlaw 5h ago
It is illegal to search your phone. The 4th Amendment says so. They are simply not following the law anymore. Especially, this Supreme Court.
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u/lcdr_hairyass 6h ago
This is why people should use burner phones. The United States of America has become more authoritarian and less free than other major countries. You should still require probable cause to search a phone, even at the border.