With increasing digitalization of our lives and businesses, privacy concerns from border searches of phones, laptops and tables are a growing concern for professionals, executives, and frequent international travelers. U.S. Customs and Border Protection (CBP) has broad authority to inspect travelers and their belongings at ports of entry. This includes electronic devices, which may be searched without a warrant under what’s known as the “border search exception” to the Fourth Amendment.
In 2024, CBP conducted approximately 47,047 border searches of electronic devices, including 42,725 basic media searches, 4,322 advanced media searches, 36,506 non-U.S. citizen electronic media searches and 10,541 U.S. citizen electronic media searches. Notably, there has been a recent string of legal U.S. residents (people with work visas, permanent resident cards, etc.) facing deportation or visa revocation based on information discovered on their electronic devices.
In one case, a Lebanese physician was deported after CBP officers found photos and videos related to Hezbollah on her cellphone. In another, an Indian Ph. D student at Columbia University had her visa revoked following scrutiny of her social media activity and participation in campus protests. Last month, a French scientist was denied entry to the U.S. after Department of Homeland Security (DHS) alleged he was carrying confidential information from an American lab. However, the French government claimed he was targeted for expressing political opinions on the U.S. government.
Although U.S. citizens generally cannot be denied reentry for refusing to unlock a phone, CBP agents can detain a device for further inspection. As for non-citizens, they may face additional consequences, including delays, detention or denial of entry. The line between what is permissible and what is excessive remains unsettled, as federal courts across the country have issued conflicting rulings.
CBP classifies device searches into two categories, a basic search and an advanced search. A basic search is a manual inspection of an unlocked device and can be conducted without suspicion. An advanced search involves connecting the device to external equipment for forensic review and requires “reasonable suspicion” that the device contains unlawful material. Although CBP and ICE policies remain in effect, some courts have begun to push back on this authority, particularly in cases involving U.S. citizens.
Border Search Cases and 2018 DHS Policy
Courts consistently uphold the “border search exception”, reasoning that the government’s interest in controlling who and what enters the country is at its highest at the border. As the Supreme Court explained in United States v. Ramsey and later reaffirmed in United States v. Flores-Montano, routine, suspicion-less searches of persons and property at the border are generally considered “reasonable” by virtue of the location.
In the past two decades, as digital privacy concerns have grown, courts have increasingly grappled with how these principles apply to smartphones, laptops, and other electronic devices. To address this evolving legal landscape, the DHS issued a policy directive in 2018 requiring that forensic or advanced searches of electronic devices be supported by reasonable suspicion. However, in general, border searches of electronic devices do not require a warrant or suspicion.
United States v. Smith: change from reasonable suspicion to probable cause?
The reasonable suspicion framework was disrupted in May 2023, when Judge Jed Rakoff of the Southern District of New York issued a groundbreaking decision in United States v. Smith, holding that the government must obtain a warrant supported by probable cause before searching and copying an American citizen’s phone at the border, absent exigent circumstances.
In this case, Jatiek Smith was stopped by CBP officers at Newark Liberty International Airport in March 2021. He had been under investigation by DHS Investigations and the FBI before his arrival, and federal agents used CBP’s border authority as a means to conduct a search without seeking a warrant. Agents forced Smith into revealing his phone password under the threat of indefinite detention, copied the contents of his device, and returned it. Weeks later, the government obtained a search warrant for the data it had already reviewed and later secured a wiretap based in part on the findings from the initial search.
Judge Rakoff ruled that this process violated Smith’s Fourth Amendment rights. Relying heavily on the Supreme Court’s reasoning in Riley v. California, which held that law enforcement must obtain a warrant before searching an arrestee’s cell phone, Judge Rakoff reasoned that the vast quantity and sensitivity of digital information carried on modern devices demands greater constitutional protection and the border search exception did not justify the warrantless search and forensic copying of Smith’s phone.
Despite finding a constitutional violation, the court declined to suppress the evidence under the “good faith” exception. Judge Rakoff concluded that the agents had reasonably relied on existing CBP policy and that a subsequently obtained warrant covered much of the forensic review.
This case is currently on appeal at the Second Circuit. Smith remains a bold but isolated ruling. Judge Rakoff’s decision has not gained traction in other jurisdictions and in 2023, the Fifth Circuit declined to adopt Judge Rakoff’s reasoning in a similar case. To date, CBP has not issued any new guidance or directives in response. Whether Smith signals the start of a broader judicial shift, or remains an outlier cautionary case, will likely be determined by future decisions. In the meantime, individuals should assume that their devices may be subject to search or seizure at the border, even without a warrant. Therefore, to preserve digital privacy prepare accordingly. If a device is seized or an individual is detained, they should promptly contact a lawyer knowledgeable in border search and digital privacy law.
Key Takeaways
- Travel light, digitally.
Travelers should consider carrying “clean” devices that contain only the data needed for the trip. If a device is seized, having only limited data can help ensure a faster review and return, with less risk of compromising privacy or confidentiality.
- Device searches are not limited to phones and laptops.
Border agents may search any electronic storage device, including flash drives, portable hard drives, SIM cards, and other accessories. Travelers should consider removing or securing peripheral media before traveling.
- Encryption and shutdown protocols matter.
Ensure all devices are protected with full-disk encryption and power them off before arrival. (Apparently, CBP are able to remotely access devices in the customs areas.)
- All documentation must be updated and valid.
Non-citizens who are required to have a visa or work permit for entry need to ensure all documentation is valid (i.e. not expired or incomplete). Otherwise, the traveler will be turned away or possibly detained.
- Protect your confidential and sensitive information.
While device seizure at the border does not automatically signal a criminal investigation, information obtained during a border search may later be used in criminal, civil or immigration proceedings. Importantly, many travelers carry sensitive or protected data – such as trade secrets, privileged communications, HIPAA protected medical information, or confidential financial information on their devices. These categories of data may not be adequately protected from disclosure during a border search. Consulting with counsel in advance of travel can help protect this information appropriately.
- Organizations should develop internal guidance.
Employers, universities, and other institutions whose personnel travel internationally should consider developing clear protocols for cross-border travel with sensitive information. Consulting with counsel in advance of travel, particularly for individuals in sensitive roles, can help mitigate legal and reputational risks. It is important to know your risks and rights at the border.
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