In a very disturbing opinion (USA v. Chinwendu Alisigwe), limiting privacy by the federal appeals court in New York, the Second Circuit ruled on September 17, 2026, that border guards may search our cellphones without any “reasonable suspicion”.
Under this ruling, customs and border patrol agents may routinely search every American’s cellphone when we are at the border or flying into an airport from a foreign country.
The basis for the opinion was that at the border, the Fourth Amendment right to “unreasonable searches and seizures” and the First Amendment right to free speech must give way to the Government’s duty to protect us from harm crossing into our borders.
A concurring judge said no warrant or probable cause was required but that phone searches should require “Reasonable suspicion”.
Reasonable suspicion is currently required at the border for strip searches or body cavity searches because they are “non routine.”
Data shows that in 2023, over 41,000 cellphones were searched at the border. We can expect that the numbers will now skyrocket as federal agents go on fishing expeditions to find criminality.
The new state of the law from the only appeals court to examine the issue is that cellphone searches are “routine” and therefore agents can search our phones whenever they choose.
Furthermore, federal prosecutors are now regularly prosecuting people who delete or attempt to delete data once they have notice that the Government agent wants to search their phones.
This is a very important issue, and its resolution does not neatly fit among liberal or conservative philosophies.
Both liberals and conservatives care about privacy rights under the fourth amendment and free speech under the first amendment. For instance, the outcry against Flock cameras recording license plates is apparently common in both red and blue communities. We do not trust our government to spy on us as we drive around.
But all Americans also care about protecting us from harm crossing into our country.
I expect the Supreme Court will eventually take this issue up — but typically the Court waits until multiple appeals courts have ruled on an issue before considering it.
I am cautiously optimistic that the Supreme Court may require reasonable suspicion prior to allowing a cellphone search of American citizens at the border, but it is not at all clear.
In the meantime, you have NO privacy rights at the border to the contents of your phone.