Phones cannot be searched at border without warrant – US Court rules

Mae Toussaint Jr Thomas.

A historic ruling in a United States (US) district court on the need for a warrant before a cellphone can be confiscated and searched on the US border, may have implications for an incident involving Guyana’s own Ministry of Home Affairs Permanent Secretary, Mae Toussaint Jr Thomas.

In April 2023, authorities at the Miami International Airport confiscated her mobile phone, while she was travelling with a Government Service Passport. This passport is issued to senior state officials for official travel duties.

Despite her official status and in the absence of a warrant, Thomas’ phone was still confiscated. But according to a ruling in the case of United States v. Smith (May 11, 2023), a New York District Court Judge found that a warrant is required to search a cell phone at the border… unless there are exigent circumstances.

Electronic Frontier Foundation (EFF), a Non-Governmental Organisation based in the US that has been advocating for civil liberties in the digital world for decades, lauded the court’s decision in a recent feature in which they asserted that previously, the US Customs and Border Protection (CBP) had conducted warrantless and sometimes suspicionless searches on devices.

“The number of warrantless device searches at the border and the significant invasion of privacy they represent is only increasing. In Fiscal Year 2022, CBP conducted an all-time high of 45,499 device searches,” EFF also said in their feature.

At the time PS Thomas’ phone was confiscated, she was transiting through the US on her way to China on official duties. However, while at the airport, she was pulled in for questioning by US authorities during which her cellphone was confiscated.

The Permanent Secretary had nonetheless continued her journey to China following the incident.

Upon her return, Thomas was expected to file a report on the encounter to the Foreign Affairs and International Cooperation Ministry.

Following the incident, the Ministry, on behalf of the Guyana Government, had reached out the United States Embassy in Georgetown for information about what transpired and led to the actions of the US authorities at the airport.

Permanent Secretary of the Foreign Ministry, Ambassador Elisabeth Harper had told this publication that up to that time that they had not received any information from the US Government on the issue and were awaiting a report from the Embassy in Georgetown.

Subsequently, the US Embassy had responded to the Foreign Ministry’s request for details surrounding the confiscation.

A missive from Deputy Chief of Mission at the US Embassy, Adrienne Galanek, had detailed the policy of the Department of Homeland Security and US Customs and Border Protection (CBP) that is shared with all travellers to the US including citizens of that country.

“If CBP officers at a port of entry need more information to determine your admissibility into the US, you may be directed to an interview area known as secondary inspection. You could also be subjected to a secondary inspection as a result of a random search. Anyone, including US citizens, may be subject to secondary inspection if the CBP officer has reservations about admitting him or her. Secondary inspection is a more detailed inspection to determine admissibility. It allows CBP officers to conduct additional research to verify information without delaying other travellers,” the Deputy Chief of Mission had said.

During a secondary inspection, the CBP officer may ask you detailed questions about your travel plans and immigration history. You may also be asked to produce additional proof of identification and detailed information about the purpose of your visit to the US. Both you and your belongings may be subject to a thorough search. Such inspections may include a search of all electronic information stored on your laptop, cell phone or other electronic device.”