By Julia Laico
ZMO Law PLLC Law Clerk
Travelers expect to have their luggage screened at the airport—but few anticipate that officers can comb through their phones, laptops, or digital devices, let alone that they can face criminal charges for something found on their electronics. But that’s what happened to Kurbonali Sultanov, whose case raises critical questions about the limits of the government’s border search authority and digital privacy rights.
Sultanov, a naturalized U.S. citizen born in Uzbekistan, was stopped at New York’s JFK Airport on March 5, 2022, after a so-called TECS alert flagged him as a potential possessor of child sexual abuse material — kiddie porn. During a secondary inspection, U.S. Customs and Border Protection (CBP) officers manually searched Sultanov’s phone after he provided his passcode. CBP allegedly found illicit content. Homeland Security Investigations (HSI) then reviewed the phone and interviewed Sultanov on video.
Sultanov was later indicted for possession of child pornography and moved to suppress both the phone evidence and the statements Sultanov made while he was in custody. In a 93-page opinion issued last fall, U.S. District Judge Nina R. Morrison of the Eastern District of New York partially granted the motion to suppress, ruling that the cell phone search was illegal but that agents had acted in “good faith” based on a warrant and an unsettled legal landscape around phone searches at the border. Sultanov later pled guilty to possession of child pornography. He remains free on bail awaiting sentencing.
While the Fourth Amendment protects against unreasonable searches and seizures, its application at the border is far less clear. Sultanov’s case highlights the growing tension between individual privacy rights and the expansive authority CBP claims at ports of entry, where searches of electronic devices are becoming more common, more invasive, and more controversial.
CBP reported that in 2024 it searched about 47,000 electronic devices in the course of 420 million border crossings. While that may seem like a relatively small percentage, experts warn that the enforcement process has become even less predictable under the Trump administration.
In one recent example, a Norwegian tourist detained at Newark Airport believes CBP singled him out after spotting a meme of J.D. Vance on his phone. While CBP and the Department of Homeland Security deny that the meme was the impetus for the seizure of his phone, the incident underscores growing concerns about the arbitrary nature of digital inspections–and the need for judges like Morrison to rein in CBP’s authority.
Other travelers have faced even more invasive treatment. Rejhane Lazoja, a Staten Island woman, had her phone seized by CBP after flying in from Switzerland. Her device was held for 130 days without explanation and, when returned, officials declined to say what they had done with her data. Lazoja’s phone contained attorney-client communications and private photos of her without a hijab—images that, according to her religious beliefs, should never be viewed by any man who is not a relative. Lazoja’s experience serves as a chilling reminder that digital searches can have deeply personal and legal consequences.
Fortunately, some federal judges are pushing back on CBP overreach. In one such case last year, a court granted a motion to suppress evidence from flight attendant Jasmine Fox’s phone, which had been searched at LaGuardia Airport.
Unlike in Sultanov’s case, there was no warrant. Judge Nicholas Garaufis of the Eastern District of New York found that the “good-faith” exception did not apply to Fox’s circumstances. He ruled that the agent’s search of Fox’s phone reflected “reckless or grossly negligent disregard” of Fox’s Fourth Amendment rights and appeared to be a “tactical move” to avoid the warrant process. This decision sends a strong message: border searches of digital devices must still meet constitutional standards.
The same principle was reaffirmed in the case of Bruce Silva, arrested in the Bronx in connection with a shooting. Officers obtained a warrant to search his phone, citing suspicions of wire fraud, racketeering, firearms offenses, and gang activity. But Judge Paul Gardephe of the Southern District of New York ruled that the government lacked probable cause, noting that officials failed to show a clear “nexus” between Silva’s alleged crimes and the phone’s contents.
The court dismissed the government’s “common sense” argument that most criminals use phones, calling it a “hunch”—not a legal justification. As the court put it, such reasoning would “entirely vitiate” the constitutional requirement to show evidence linking the device to criminal activity.
What CBP can do with your digital devices and data at the airport remains legally murky. Historically, the “border exception” to the Fourth Amendment’s warrant requirement has allowed government officials to conduct routine searches of travelers’ “persons and effects” at international borders without a warrant or probable cause, based on the government’s interest in preventing contraband from entering the country. An international airport, like JFK, is the functional equivalent of a border for Fourth Amendment purposes.
However, the nature of electronic devices has introduced new considerations. In Riley v. California (2014), the Supreme Court highlighted the “vast amounts of highly personal information” contained on modern cell phones, concluding that searching a cell phone is a substantial invasion of privacy. Riley held that a warrant and probable cause are generally required to search a cell phone, acknowledging that cell phones differ from other physical objects in significant respects.
The Second Circuit has reached varying conclusions in border search cases, as have circuit courts across the country, some concluding that a search warrant and probable cause is necessary, and others not. In ZMO Law’s case U.S. v. Djibo, an Eastern District of New York judge invalidated an outbound border search on the basis that agents did an initial “peak” of the phone before obtaining a warrant. Just last month, the Second Circuit heard oral argument on the issue in U.S. v. Smith. While the “border exception” historically allowed searches without suspicion, the application of this exception to electronic devices like cell phones is unsettled. The increasing recognition of the profound privacy interests implicated by digital data has led many courts to conclude that a higher standard, ranging from reasonable suspicion to a warrant with probable cause, is necessary for such searches at the border.
What you need to know: As a practical matter, under current law, CBP can search your phone, laptop, or other electronic devices at the border. But you’re not powerless. The Electronic Frontier Foundation (EFF) offers useful tips to protect your privacy.
For starters:
- Power down your phone before arriving at the border.
- Disable Face ID and Touch ID so agents can’t unlock it without your consent.
- Use a strong passcode.
- If you have sensitive data, consider secure deletion, but avoid wiping your device entirely—that might raise red flags.
While these searches remain relatively rare, the legal risks and privacy stakes are significant. As courts continue to weigh in on what’s constitutional at the border, travelers should be aware, informed, and proactive in safeguarding their digital rights. If you or someone you know has a digital device seized at the airport or border, please do not hesitate to call ZMO Law PLLC at (212) 685-0999.