- Date of Incident
- July 30, 2017
- Isma’il Kushkush
- Case number
- Case Status
- Type of case
- Border Point
- Highgate Springs Port of Entry
- US Citizenship Status of Target
- U.S. citizen
- Denied Entry?
- Stopped Previously?
- Asked for device access?
- Asked intrusive questions about work?
Supreme Court declines to hear case on warrantless electronic device searches at border
On June 28, 2021, the Supreme Court declined to hear a case filed by the American Civil Liberties Union and Electronic Frontier Foundation on behalf of Isma’il Kushkush and others challenging the practice of warrantless searches of electronic devices at the border.
Both the plaintiffs and the government defendants appealed the federal district court’s November 2019 ruling that any “non-cursory” search of an electronic device at the border requires reasonable suspicion that the device contains illicit materials or contraband, but that warrants supported by probable cause were not necessary.
In a judgment filed on Feb. 9, 2021, the U.S. Court of Appeals for the First District overturned the federal district court’s ruling restricting device searches and denied the plaintiffs’ claims.
“We find no violations of either the Fourth Amendment or the First Amendment,” Circuit Judge Sandra Lynch wrote in the court’s findings. “We join the Eleventh Circuit in holding that advanced searches of electronic devices at the border do not require a warrant or probable cause. We also join the Ninth and eleventh Circuits in holding that basic border searches of electronic devices are routine searches that may be performed without reasonable suspicion.”
The ACLU and EFF filed a motion petitioning the Supreme Court to hear the case on April 23, but the court declined in June, effectively closing the case.
Isma’il Kushkush — a former acting bureau chief of the New York Times in East Africa and International Center for Journalists fellow — was stopped at the U.S.-Canadian border in Vermont on July 30, 2017, while driving back from Montreal.
Kushkush, a Sudanese-American dual citizen, is one of 11 plaintiffs in a lawsuit against the Department of Homeland Security, brought by the American Civil Liberties Union, the Electronic Frontier Foundation and the ACLU of Massachusetts. According to the legal complaint, U.S. Customs and Border Protection officers directed him to a secondary screening area.
After waiting for an hour, an officer instructed Kushkush to unlock his phone, threatening to seize it if he did not comply. Stating that he was doing so against his will, Kushkush unlocked his phone. According to the complaint, the officer wrote down the password and took the phone out of Kushkush’s sight for at least an hour.
According to the complaint, three hours after Kushkush was initially detained, he was escorted to a separate area where officers questioned him about his journalistic work. The complaint does not detail what questions the officers asked him during that time.
After a total of three and a half hours in the inspection area, Kushkush was released.
Kushkush has reported being detained at the border on at least five previous occasions between 2013 and 2016. He said that these stops lasted between two and three hours and frequently involved requests for access to his electronic devices. CBP officers also directed Kushkush to secondary screening in Jan. 2017, detained him for almost two hours and searched his notebooks and cellphone.
In 2018, Kushkush told the Committee to Protect Journalists, “Clearly I was singled out. It was clear that there was a pattern, that I was specifically being, you know, targeted and questioned about my whereabouts.”
Kushkush said the screenings made him more hesitant around traveling and reporting abroad.
The U.S. Press Freedom Tracker includes incidents only from 2017 forward.
On Nov. 12, 2019, a federal court in Boston ruled in favor of Kushkush and the other plaintiffs in the ACLU and EFF’s case against DHS, U.S. Immigration and Customs Enforcement and CBP. The court found that warrantless searches of electronic devices at the border violate the Fourth Amendment, the Associated Press reported. Moving forward, border officers must now demonstrate individualized suspicion before searching a traveler’s device.
In a press release from EFF, ACLU attorney Esha Bhandari said, “This ruling significantly advances Fourth Amendment protections for millions of international travelers who enter the United States every year.”
“By putting an end to the government’s ability to conduct suspicionless fishing expeditions, the court reaffirms that the border is not a lawless place and that we don’t lose our privacy rights when we travel,” Bhandari said.