Trump Should Need a Warrant to See Your Phone
· The Atlantic
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.
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Federal prosecutors have charged Tunick with destruction of evidence. He was detained at the Atlanta airport in January 2025, after returning from a vacation to the Dominican Republic. His attorneys have argued that agents approached him to inspect his phone because he was a member of the Defend the Atlanta Forest movement, which was protesting against a proposed police-training facility in Atlanta that opponents refer to as “Cop City.” But prosecutors have not suggested what underlying crime he committed or released any information about what the agents might have been looking for.
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. Some courts have distinguished between a manual search, 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, in Atlanta, that upheld a conviction based on a warrantless search of a man’s phone that uncovered child pornography.
For obvious reasons, though, a cellphone is different from a suitcase. When the Fourth Amendment was written, establishing “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” its authors could not have imagined that someone could carry a device with all their “papers and effects” in it.
[Read: Homeland Security’s plan to squeeze international flights]
“You search someone’s luggage, maybe that person is traveling with a diary or a bank statement or a few photographs or something in their wallet or whatever, but that’s a small sliver of who they are as a person,” Sophia Cope, an attorney with the Electronic Frontier Foundation (EFF)—a nonprofit focused on protecting digital rights—told me. But a smartphone can hold all the intimate details of a person’s life: their medical, financial, and location history; their faith, sexual orientation, political views. Group-chat gossip is the least of it.
It was with this in mind that the Supreme Court ruled in a 2014 case, Riley v. California, that police need a warrant to search a cellphone. “It is no exaggeration to say that many of the more than 90% of American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives—from the mundane to the intimate,” Chief Justice John Roberts wrote. “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.”
But this decision said nothing about searches at the border. Federal agents continued to treat those searches differently, a practice that was then sanctioned by the Eleventh Circuit ruling. “The way the government interprets the Eleventh Circuit rule is they can search for any purpose at all with no limitation,” Nate Wessler, an attorney with the ACLU, told me. “They don’t need to go to a judge; they don’t need reasonable suspicion” to swipe through someone’s device without a warrant.
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. EFF rightly argues that device searches are different because only a few possible kinds of contraband can be contained on a phone—including child pornography. Nevertheless, 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.
Under Donald Trump, the number of border searches of cellphones and other devices has grown significantly, amounting to tens of thousands a year. Although those tens of thousands of searches amount to a small fraction of total international travelers, the increase means that journalists, activists, or anyone seen by the administration as a political enemy may reasonably fear being targeted. The Trump administration has made no secret of its intent to prosecute left-wing activists as terrorists—in June, the Department of Justice indicted anti–Cop City activists on conspiracy charges for a protest in which fireworks were set off. The administration has indicted more than 50 people on such charges, NPR reported. Although most of those prosecutions have failed so far—and the administration has been frequently rebuked for trying to deceive the courts—at least one has resulted in serious prison time.
[Read: Trump can prosecute anyone now]
Before the American Revolution, one of the English abuses of power most hated by the colonists was the use of “general warrants” or “writs of assistance”—documents that gave representatives of the Crown blanket authority to enter people’s homes and search through their private effects. Searches could be done without any evidence or suspicion of a crime, “a power that places the liberty of every man in the hands of every petty officer,” in the words of the founding-era lawyer James Otis.
In the 18th century, though, your “persons, papers, and effects” couldn’t be held on a powerful pocket computer that also tracks your location at all times. Virtually everything that a corrupt or authoritarian government would have wanted to know about someone in the founding era can now be found on your cellphone. This may be of greater concern to Trump critics today, but conservatives inclined to insist that they have nothing to hide should consider how they would feel about a future Democratic president authorizing border agents to perform warrantless searches on the devices of people he considers his political enemies.
The Trump administration already has a track record of using the Justice Department for political persecution—a use facilitated by Roberts Court jurisprudence that eviscerated the department’s independence. In addition to left-wing activists, federal prosecutors have gone after former FBI Director James Comey, a sometime Trump critic, and accused a former Olympian of having vandalized the Reflecting Pool (the charges were eventually dropped; the damage was actually caused by the shoddy work of a Trump-selected contractor). Anyone critical of the administration would have ample reason to be concerned about federal agents searching their phone without a warrant, but one needn’t be a vocal opponent to find themselves subject to a nonsense prosecution by a president trying to shore up one lie or another.
A duress password can be set up through the use of a third-party operating system. But using one is risky precisely because the government is more likely to prosecute someone who deletes their phone’s content before a search. Anyone worried about a warrantless border search would likely be better off using an alternate phone for their trip, or backing up their data and then wiping their device before leaving.
But Americans should not have to make those kinds of calculations to avoid federal agents invading their privacy. The possibility of having to prepare for such a search might be enough to persuade people to censor themselves—to avoid public criticism, political activity, or any kind of personal expression that might draw the wrath of the government—lest they attract the wrong kind of attention from federal authorities. And online anonymity is not necessarily a shield—The Wall Street Journal has reported that DHS has been seeking to unmask online commenters critical of ICE by subpoenaing social-media companies. These people weren’t committing crimes—they were “saying naughty things about ICE and immigration enforcement,” as one attorney put it to the Journal.
Tunick’s lawyers are arguing that the search itself was a violation of his constitutional rights. The Guardian reported that Tunick was being observed because of “suspected terrorism activities” and that, while being detained, he repeatedly asked for an attorney, a request rebuffed by interrogators. “Law enforcement seemingly took advantage of the relaxed constitutional protections at the border to try to dig up evidence against Mr. Tunick, and possibly others” connected to his political activism, Tunick’s attorneys wrote.
[Quinta Jurecic: The ‘presumption of regularity’ is evaporating]
If their account is correct, then the worst-case hypothetical is already taking place: Federal authorities are searching for legal loopholes that allow them to drum up prosecutions against people the Trump administration sees as political enemies by circumventing their basic constitutional rights.
The result, Wessler said, will be “domestic law-enforcement agencies, from the FBI on down, who can call up their buddies at CBP and say, Hey, we think the suspect of ours is gonna come across the border. Would you do us a solid and search his phone? We wanna see if there’s evidence for our domestic investigation.”
This is a relatively simple problem for Congress to solve. In 2021, Democratic Senator Ron Wyden of Oregon and Republican Senator Rand Paul of Kentucky proposed legislation to close the border-exception loophole for electronic devices. Congress could easily pass a law compelling warrants for most border searches of electronic devices.
Were Tunick’s case to make it to the Supreme Court, the Riley decision suggests the Court might rule that federal authorities at international ports of entry should not be allowed to just rummage through the private life of anyone who commits the crime of taking an international flight. This Court’s Fourth Amendment jurisprudence has been friendlier toward civil liberties than one might expect, and in Riley, the justices unanimously told the police that if they want to search a suspect’s phone, they need to get a warrant.
That was years ago, however, and it is fair to wonder whether the perspective of the Roberts Court has changed, as it has become far more receptive to kingly assertions of power than it once was.