Virginia Courts Challenge Government’s Authority to Seize Travelers’ Phones at Border

Two lawsuits filed in the Eastern District of Virginia are testing the limits of the government’s power to conduct forensic searches of smartphones at U.S. ports of entry. Judge Michael Nachmanoff held that Customs and Border Protection’s “advanced” scan of activist Osama Abu Irshaid’s phones was not a routine border search and therefore required specific, individualized suspicion, which the agency failed to demonstrate, violating the Fourth Amendment.

While the court recognized a chilling effect on speech, it stopped short of finding a First-Amendment retaliation. In a related case, Judge Leonie Brinkema declined to throw out journalist Max Blumenthal’s claim after his devices were seized following travel that included Iran, ordering a narrow discovery to determine whether the government accessed the phones. The judge noted concerns about governmental intrusion on reporters’ rights, referencing recent subpoenas of other journalists. Both cases underscore growing judicial scrutiny of border-search practices amid claims of political retaliation.