The U.S. Customs and Border Protection (CBP) has the authority to search electronic devices at the border, a power that has sparked controversy and legal challenges in recent years. Between October 2018 and March 2024, CBP conducted more than 252,000 electronic device searches—just a small fraction of the hundreds of millions of travelers processed at U.S. ports of entry. However, these searches raise significant privacy concerns, particularly given CBP’s access to multiple government databases that store personal information.
How and Why CBP Searches Phones at the Border: CBP officers can conduct searches of travelers’ phones, tablets, and laptops at any U.S. port of entry, including airports and land border crossings. Officers may inspect a device manually or conduct an “advanced search,” which involves connecting the device to specialized software that extracts data. Unlike law enforcement searches inside the U.S., CBP does not always need a warrant to inspect electronic devices. The agency justifies this authority under the “border search exception, “which allows officers to conduct searches without probable cause or a warrant for the purpose of enforcing immigration and customs laws.
The Role of Government Databases in Border Screenings: When travelers arrive in the U.S., their information is screened against various databases. The Interagency Border Inspection System (IBIS), used by CBP, allows officers to cross-reference traveler records with databases from agencies such as the FBI and Department of Homeland Security (DHS). These databases include the National Crime Information Center (NCIC) and terrorist watch lists. While this system is intended to enhance national security, it can also lead to increased scrutiny of certain travelers, particularly those flagged for past criminal offenses or security concerns.
Air Travelers Face Additional Screening: Air travel provides CBP officers with additional time to review passenger information. Commercial airlines collect travelers’ passport and visa details before departure and transmit them to CBP through the Advance Passenger Information System (APIS). This early data collection allows CBP to assess travelers before they even land in the U.S. In contrast, those crossing the border by land typically present their documents directly to an officer upon arrival. Regardless of the method of travel, CBP has broad discretion to conduct electronic device searches at all ports of entry.
Who is Most Likely to Be Subject to a Phone Search? CBP does not publicly disclose the specific criteria for selecting travelers for secondary screening or device searches. However, certain factors may increase the likelihood of a search, including:
- Travel history (frequent trips to certain countries may trigger additional scrutiny)
- Prior immigration violations or criminal history
- Being flagged in government databases
- Randomized screening procedures
- Country of citizenship
- Membership in certain groups
- Field of work or study
While le U.S. citizens cannot be denied entry for refusing to provide access to their phones, noncitizens—including visa holders and green cardholders—may face consequences if they decline to comply.
Legal Challenges and Privacy Concerns: CBP’s phone search practices have faced legal challenges, with privacy advocates arguing that such searches violate constitutional protections against unreasonable searches and seizures. In a landmark case, a federal court ruled that border agents must obtain a warrant before conducting in-depth searches of electronic devices. However, basic inspections—such as scrolling through a phone’s contents—remain permissible without a warrant.
Implications for Permanent Residents and Noncitizens: While U.S. citizens have the right to enter the country, lawful permanent residents (green card holders) and visa holders are subject to additional scrutiny. Green card holders are generally not considered to be “seeking admission” when returning to the U.S., meaning they are not typically subject to inadmissibility grounds. However, those with past criminal convictions, especially offenses classified as “crimes of moral turpitude,” may be flagged for additional screening and even face potential removal proceedings.
Electronic Device Searches for U.S. Citizens at the Border: Like permanent residents, U.S. citizens are subject to electronic device searches by CBP when returning to the United States. CBP’s authority is based on the border search exception, which allows searches without a warrant. Key Differences for U.S. Citizens
- Right to Enter – Unlike non-citizens, CBP cannot deny entry to a U.S. citizen for refusing to unlock their device.
- Device Seizure – If a U.S. citizen refuses to provide access, CBP may detain the device for further inspection. Devices can be held for up to five days (or longer with supervisor approval).
- Cloud Data Protections – CBP policy states officers should only access data stored on the device, not cloud-based information.
- Fifth Amendment Considerations – While CBP can ask for passwords, a U.S. citizen may invoke their Fifth Amendment right against self-incrimination, though the legal application is evolving.
- Legal Challenges – Courts have upheld CBP’s authority to conduct basic device searches, but advanced searches (using forensic tools) require reasonable suspicion or a national security concern.
Where do we currently stand? CBP’s authority to search electronic devices at the border remains a contentious issue, balancing national security interests with individual privacy rights. While these searches affect only a small, but growing percentage of travelers, those who are selected for inspection may face significant privacy intrusions. As legal battles over warrant requirements continue, travelers must remain informed about their rights and take steps to protect their personal data when crossing the U.S. border.