Foreign nationals visiting the United States, and even returning U.S. citizens and other legal residents (with valid visas), face increasing digital privacy risks and potential entry challenges when arriving at U.S. ports of entry.
Legal, cybersecurity, and civil liberties experts are raising significant concerns about the extent of Customs and Border Protection (CBP)’s authority and the growing subjective nature and unpredictability of certain border enforcement actions.
The purpose of this alert is to educate clients whose businesses may involve travel by foreign nationals into the United States on six key points.
1. Increased Detentions and Entry Denials Since the Start of the Second Trump Administration
There has been a documented rise in foreign nationals—particularly from Europe—being detained or denied entry into the United States at numerous Points of Entry (POE’s). Reports include travelers with valid visas and even lawful permanent residents (Green Card holders).Some detentions have stemmed from the content of digital communications (on smartphones and laptops) expressing personal political views.
2. Proposed Travel Ban Expansion
The Trump Administration is reportedly preparing to implement a new “travel ban” policy affecting over 40 countries. At least 10 nations may face outright entry bans, with additional countries subject to heightened screening or discretionary entry evaluations within 60 days of the policy’s enactment.
3. Expanded Digital Device Searches
CBP continues to assert broad legal authority to search electronic devices without a warrant at the U.S. border. These searches may include “basic” manual reviews and “advanced” forensic extractions.
Though advanced searches require “reasonable suspicion,” there is no consistent standard of practice, and travelers often face prolonged detentions (several hours or even days) without clear legal recourse. Refusal to allow access and review is reportedly resulting in numerous denials of entries by foreign nationals.
4. U.S. Citizens and Green Card Holders Are Not Immune
While U.S. citizens cannot be denied reentry for refusing to disclose electronic device passcodes, they may still have devices seized and subjected to forensic examination. Green Card holders have similar protections, but anecdotal evidence suggests inconsistent enforcement, creating legal ambiguity and practical risk.
5. Legal Uncertainty Remains
Despite the 2014 Supreme Court ruling in Riley v. California affirming warrant requirements for cellphone searches upon arrest, its application at the U.S. border (where there have traditionally been fewer due process rights) remains unsettled.
Federal appeals courts remain split on the issue, and the Supreme Court has yet to resolve the constitutional standard for digital privacy at the U.S. border—particularly as applied to foreign nationals.
6. Practical Recommendations for Travelers
We advise the following strategies for mitigating current risks of denial of entry at the U.S. border:
- Minimize data: Scrub any social media posts and devices before traveling. Travel with “clean” devices carrying only essential information. Avoid syncing personal accounts or sensitive data. Consider packing electronic devices in checked luggage and carrying a separate traditional “burner” phone with only call operation to receive important calls during travel.
- Encrypt devices: Use full-disk encryption (e.g., FileVault, BitLocker) and power off devices before inspection to activate protections.
- Use strong authentication: Disable biometric unlocking features like FaceID and rely on strong alphanumeric passcodes.
- Separate sensitive apps: Use OS tools like Android’s Private Spaces or hidden folders on iOS to isolate confidential data.
- Announce your plans: Alert counsel and even your country’s embassy or consulate closest to your planned port of entry before entry. Notify a trusted party or attorney before arrival. If your are detained, they can initiate advocacy efforts on your behalf.
- Weigh risk versus necessity: Non-citizens must weigh the risk of denial of entry against maintaining digital privacy. For many, compliance may be the only option for admittance.
Conclusion
Given the rapidly evolving enforcement environment, businesses, legal residents, and international travelers should reassess their border-crossing practices and digital security protocols. Until clearer legal protections are established, prudence and preparation are essential to safeguard personal privacy and ensure lawful entry into the United States.
