If you're planning to travel, know your rights so you can protect your electronic devices from unreasonable government searches.
In general, the Fourth Amendment protects against unlawful searches and seizures. Normally, searching your cellphone without a warrant would violate the Fourth Amendment. Law enforcement officers cannot search your cellphone or other electronic devices when they stop you on the street or conduct a traffic stop, even if the search is in connection with an arrest.
However, your rights are different when you’re crossing the border:
The government’s position is that Fourth Amendment protections do not apply at border crossings. The government claims to have the authority to take a device and conduct an advanced search. Even otherwise protected information (e.g. journalists’ sources or an attorney's client list) may be searched.
The ACLU argues that the Fourth Amendment does apply in these situations, at least to electronic devices, because they contain so much private information. But the law is very unsettled, and the Supreme Court has not addressed the issue.
Before you go:
- Travel with as few devices as possible. The less you bring, the less there is to search.
- Travel with as little data as possible. Consider using a travel-only phone or laptop with no private information.
- Encrypt devices with strong and unique passwords.
- Completely turn off devices when crossing the border.
- Use a password or passcode to secure your devices. Disable biometric log-ins like Face ID and fingerprint ID. Agents can hold your phone up to your face to unlock it without your consent.
- Remove sensitive data from your device before crossing the border. Upload data to the cloud and delete it from your device, and disable any apps that connect to cloud-based accounts. (Border agents are supposed to access only data accessible offline, although that includes any cloud data that’s synced to an app).
If you’re asked to turn over your device by border agents:
You can say you do not consent, but border agents may well take your device anyway.
If asked for your password and/or if your device is searched:
- Your rights depend on citizenship and immigration status:
- If you are a U.S. citizen, you cannot be denied entry into the country for refusing to provide a password. However, you may be detained longer or have your device seized for a lengthy period.
- If you are a legal permanent resident (LPR), the same rules that apply to U.S. citizens should apply to you: you cannot be denied entry simply for refusing a search. However, LPRs may be screened for “inadmissibility” if they’ve been out of the U.S. for 180+ days. Because of this, some LPRs may not feel comfortable refusing a search.
- If you’re a visa holder, you may be denied entry if you refuse to provide a password.
- If you consent to a search, you should enter the password yourself instead of sharing the password with border agents.
- If you have privileged information on your device (e.g., attorney-client communications), tell border agents. Border agents are supposed to follow certain procedures if searching a device with privileged material.
- If your device is searched, ask for a receipt including information about the device and agency contact information so you can follow up.
