28 March 2025

Since the start of the second Trump administration, Customs and Border Protection (CBP)’s surveillance measures have increasingly extended to travellers’ electronic devices. The US government has the authority to search all electronic devices at the border, irrespective of your legal status in the country or whether they have any reason to suspect you have committed a crime. You can state that you do not consent to such a search, but this likely will not prevent CBP from taking and searching your devices.

As background, the US government has long claimed that Fourth Amendment protections prohibiting warrantless searches do not apply at the border. Several federal appeals courts have come to conflicting opinions about when it is constitutional for customs and border agents to search electronic devices, but the Supreme Court has not weighed in on the matter. Until it does, CBP exercises wide latitude in conducting searches. Notably, a federal judge in New York ruled that CBP cannot search travellers’ phones without a warrant. The ruling theoretically applies to land borders, seaports, and airports but in practice only applies to the New York’s Eastern District, which includes JFK airport.

Recently, there have been a number of news reports regarding foreign visitors and lawful permanent residents (commonly known as green card holders) being detained, in some cases because CBP officials found communications on their electronic devices where they expressed unfavourable opinions of the Trump administration’s policies or conduct. These stories, amidst an overall uptick in foreign visitors to the US being denied entry or sent back to their place of departure, is making travellers increasingly anxious about entering the US. Furthermore, CBP surveillance may become more stringent if the Trump administration follows through on plans to enact a new “travel ban” on more than 40 countries, which would reportedly bar entry entirely for foreign visitors from at least 10 nations and potentially impact more than 30 other countries.

Generally, CBP conducts two types of device searches. Namely, a “basic search” where an officer manually reviews a device’s content, and an “advanced search” where a device is connected to external equipment to download the full contents of the device and to save a copy of the data. Basic searches do not require any cause, but advanced searches require “reasonable suspicion” of a crime. Since 2018, CBP is not required to return devices to travellers before they leave the airport or port of entry and there have been reports of phones being held for weeks or even months.

These searches which pose a threat to digital privacy and free expression, affect US citizens, green card holders, and visa holders in varying degrees. US citizens cannot be denied entry for refusing to share their passwords or PINs to their electronic devices or social media accounts, so they are at liberty to stand their ground and withhold access. However, US citizens may be detained, and their devices may be confiscated and even sent off for advanced searches. Similarly, green card holders should not be denied entry or deported, but they can be put into removal proceedings. For immigrants coming to the US on a visa or from a visa-waiver country, refusing to consent to CBP requests for their passwords or PINs poses much harsher consequences. Simply, visa holders may be denied entry if they do not comply.

Recommendations
Here are some methods travellers to the US can take to protect their digital privacy when entering:

• For the most vulnerable travellers, a drastic measure to keep personal data away from CBP is not to travel with personal digital devices.
• Turn devices off before entering customs, since hard-drive encryption tools offer full protection only when fully powered down.
• Set up travel devices that store the minimum sensitive data and do not link those devices to personal accounts. If you have to create linked accounts—as with an Apple ID for iOS device—create new ones with unique usernames and passwords.  In this instance, if CBP asks for your passwords or PINs, you can give them access without fear of losing any sensitive information.
• If you use FaceID, iPhones are safest when they are turned off, since they require a PIN rather than a face scan when first booted. If you need to keep your iPhone on, select volume up, volume down, then the power button to unlock your phone with your PIN instead of a face scan before going through the border check point.
• Separate sensitive apps from being shown with others by placing them in a separate folder and protecting the folder with another layer of authentication.
• Some security experts recommend creating secondary personas for social media accounts that can be offered up to customs officials while keeping more sensitive accounts secret. However, if CBP agents link your identity with a hidden account, the result could be longer detention and, for noncitizens, denial of entry or even a finding of permanent inadmissibility due to material misrepresentation. This is because ESTA and visa applications require travellers to provide all social media identifiers.

Although border security is an evolving matter, taking these steps may help to minimize the risk of CBP accessing your data. Finally, let someone know when you are about to go through the border and provide them with your legal representative’s contact information so they can get assistance in the event that you are not admitted.

For further advice contact your Laura Devine Immigration attorney or enquiries@lauradevine.com.