This post was originally posted on March 14, 2017 and updated on March 21, 2025.

The government has long claimed that Fourth Amendment protections prohibiting warrantless searches don’t apply at the border. The American Civil Liberties Union takes issue with this position generally, especially when it comes to electronic devices like smartphones and laptops. Our smartphones store detailed accounts of our conversations, professional lives, whereabouts, and web-browsing habits. They paint a far more detailed picture of our private lives than, say, a piece of luggage.

The Supreme Court recognized this reality when it ruled in 2014 that the Constitution requires the police to obtain a warrant to search the smartphone of someone under arrest. As the ACLU has argued in various court filings, there’s no reason the Constitution’s safeguards against unwarranted searches shouldn’t also apply when we travel internationally given the ubiquity of these devices, and their ever-growing capacity to track the minutiae of our private lives.

Unfortunately, the government doesn’t agree, and the law on the matter is far from settled. Because of the high-stakes implications of these kinds of searches, and amidst evidence suggesting they’re on the rise, it’s important to understand the landscape so that you can make decisions that are right for you ahead of your travels.

The government claims the authority to search all electronic devices at the border, no matter your legal status in the country or whether they have any reason to suspect that you’ve committed a crime. You can state that you don’t consent to such a search, but unfortunately this likely won’t prevent Customs and Border Protection (CBP) from taking your phone.

If you’ve given CBP agents the password to your device (or if you don’t have one), they might conduct what’s often called a “basic search” on the spot. They might also download the full contents of your device and save a copy of your data. Since 2018, they are not required to return your device before you leave the airport or other port of entry, and they might choose to send it off for a more thorough “advanced” or “forensic” search. Barring “extenuating circumstances,” they claim the authority to hold onto your device for five days — though “extenuating circumstances” is an undefined term in this context, and this period can be extended by seven-day increments. We’ve received reports of phones being held for weeks or even months.

As a result of this policy, even the most universally recognized private information — like communications with your lawyers — are insufficiently protected at the border. If you possess information that is protected by attorney-client privilege, you should tell the CBP agent you’re interacting with. Although CBP policy imposes some limitations, it still permits government employees to search the phone.

Journalists carrying sensitive information about their work or sources are also insufficiently protected. The CBP directive states that “work related information carried by journalists shall be handled in accordance with any applicable federal law and CBP policy” — but it’s unclear what this means. Journalists who feel their rights have been violated at the border should let us know, and those who have upcoming travel should consult with their organizations’ general counsel offices or press associations.

If you leave the airport or other border checkpoint without your device, make sure you get a receipt, which should include information about your device and contact information allowing you to follow up. If, after the forensic search is conducted, there is no probable cause to believe the device contains evidence of a crime, the government says it will destroy any information it copied within 21 days. Yet there’s a caveat here, too. CBP might retain the notes it took during the search of your device or any questioning while you were at the border.

Your legal status in the country may inform what you decide to do if you’re asked for a password to unlock your device.

If you’re a citizen, you can’t be denied entry into the country if you refuse to comply with a request to unlock your device or to provide a password. But you might be detained for longer or have your device seized and not returned to you for weeks or months. The same should be true for those who have previously been admitted to the United States as lawful permanent residents and have maintained their status — their green cards can’t be revoked without a hearing before an immigration judge. If you are not a citizen and are concerned about having your devices searched, you should consult with an immigration lawyer about your particular circumstances before traveling.

Visa holders and tourists from visa waiver countries, however, run the risk of being denied entry if they refuse to provide a password, and they should consider that risk before deciding how to proceed.

Whether you’re a citizen or not, though, we always recommend that you enter the password yourself rather than divulging it to a CBP agent. They still might demand that you share it, but it’s a precaution worth trying to take. If you do hand over your password, it’s likely to end up in a government database, so change it as soon as you have the chance and make sure you no longer use that password for any other account.

Here are a few precautions you can take in preparation for your trip to ensure things go as smoothly as possible:

• Travel with as little data and as few devices as possible. The less you’re carrying, the less there is to search. Consider using a travel-only smartphone or laptop that doesn’t contain private or sensitive information. You could also ship your devices to yourself in advance. (Be aware that CBP claims the authority to search international packages so it is best to encrypt any devices that you ship.) Keep in mind that a forensic search of your device will unearth deleted items, metadata, and other files.
• Encrypt devices with strong and unique passwords and shut them down when crossing the border. A good resource on how to do so can be found here.
• Store sensitive data in a secure cloud-storage account. Disable any apps that connect to cloud-based accounts where you store sensitive communications or files, and don’t keep a copy of cloud-stored data in your physical possession. In July 2017, CBP publicly stated it is against policy for border agents to search cloud-stored data on electronic devices. This means that any search of an electronic device at the border should not extend to data that is only accessible via the internet — such as email or social media messages and posts that are stored on remote servers. Keep in mind that if there are copies of cloud-stored data cached on the device (for example, recent emails), border agents will be able to see that information.
• Upload sensitive photos on your camera to your password-protected laptop or a cloud-storage account. Digital cameras don’t offer encrypted storage, so you should consider backing up your photos and deleting them from your camera and reformatting the camera's memory card.
• Turn on airplane mode for all of your electronic devices before crossing a border checkpoint. CBP stated in July 2017 that its policy does not permit searches of cloud-stored data that is accessible from electronic devices through the internet. Keeping your devices in airplane mode will help ensure compliance with this policy.
• Let officers know if you have privileged material on your device. The 2018 CBP Directive on border device searches requires certain procedures to be followed before border officers can search attorney-client or attorney work product materials. If you have any privileged or sensitive material on your device, tell the border officers before they begin any search.

Until the Supreme Court weighs in on the constitutional limits of the government’s powers at the border, questions about the government’s authority to conduct these kinds of searches aren’t likely to be settled. Lower courts have issued conflicting rulings on whether individualized suspicion should be a condition for such a search. The Ninth Circuit, which covers several western states, for example, requires at least reasonable suspicion that the device contains digital contraband for a “forensic” search of a seized device, but has not imposed an individualized suspicion requirement for “cursory” on-the-spot searches. The Fourth Circuit, which covers several mid-Atlantic states, requires reasonable suspicion that the phone contains evidence of a border-related offense for a forensic search. The Eleventh Circuit, which covers three southeastern states, imposes no limits at all.

It is crucial that more courts weigh in, given that device searches at the border seem to be on the rise. CBP reports that in 2023, more than 41,000 electronic devices were searched, a huge jump from the 8,503 devices that were searched in 2015. With border officials increasingly exercising authorities that haven’t been sufficiently considered by the courts, the urgency for clear protections mounts. In the meantime, travelers should take the precautions they feel are right for them.

This resource offers a basic snapshot of possible scenarios relating specifically to electronic device searches. For a fuller picture of the many other civil liberties issues that often arise at the border, click here.

This op-ed was first published in Tampa Bay Times.

This month marks the 60th anniversary of the historic march from Selma to Montgomery, capping the struggle to pass the Voting Rights Act.

It was the apex of the civil rights movement — fueled largely by the unimaginable courage of young people, from lunch counter sit-ins in Greensboro to the Children’s Crusade in Birmingham to the Freedom Rides to Mississippi Freedom Summer to Selma.

I was so inspired by the moral leadership of the Rev. Dr. Martin Luther King, Jr. and the bravery of those in the Student Non-Violent Coordinating Committee that when we received the telegram from Dr. King at my college’s student government office pleading for volunteers, my two closest friends and I boarded a bus to Selma.

Student government expertise with messy mimeograph machines (remember that technology?) got me assigned to the office at Brown Chapel to assist Rev. Andrew Young, King’s lieutenant for the planned 54-mile march to confront then-Gov. George Wallace at the Capitol in Montgomery.

The national response to the march and the shocking murder of Viola Liuzzo, the Detroit mother of five who also came to Selma to volunteer, and other murderous violence by the Klan helped secure passage of the Voting Rights Act.

The inspiration of Selma 60 years ago stayed with me, leading to a 45-year career as director of two state American Civil Liberties Union affiliates fighting for civil liberties and especially voting rights.

Sixty years later, we are now witnessing the apex of the anti-human rights backlash, heard in President Donald Trump’s absurd claim, echoed by acolytes like Gov. Ron DeSantis, that DEI (diversity, equity and inclusion) is the source of all social ills.

This attitude has roots in resentment over the 1964 Civil Rights Act’s requirement of equal accommodations and the cartoonish characterization of affirmative action as a mandate to hire unqualified minorities over more qualified white candidates. The personification of this movement seems to be Archie Bunker, the sitcom character from All in the Family.

The current hostility to human rights is also aimed at reproductive freedom, essential for women’s equality. Unfortunately, we have yet to see that apex. Same story with regard to demonizing immigrants.

And then there is the disgusting assault on transgender youth, supported by the belief that there are no non-binary persons, and that gender dysphoria does not exist. It is, they claim, a political ideology to be shunned, therefore legitimizing discrimination against trans people.

Presumably, if DeSantis watches Jeopardy, he doesn’t see champion Amy Schneider display brilliance; he sees an activist advancing a political ideology. This is reminiscent of how, decades ago, some insisted on referring to gay men and lesbians as having a sexual “preference.”

And what should we make of the backlash’s obsession with drag? Recall that DeSantis vetoed budget allocations for all arts programming (symphonies, theaters, museums, etc.) because he heard about two drag performances in Orlando.

Apparently, the governor never appreciated Mozart’s The Marriage of Figaro or laughed at Billy Wilder’s Some Like It Hot or was touched by the love story of La Cage aux Folles by Florida’s Jerry Herman.

Eventually, folks will catch on to the many cons that bolster the backlash:

• “We will end voter fraud and restore election integrity.” This is cover for “we can cling to power by making it difficult for the ‘wrong’ people to vote.”
• “We will restore a merit-based system.” Anyone notice the qualifications of Trump’s cabinet appointees?
• “We will be true defenders of free speech,” but we are OK removing books from library shelves and restricting university discussions about Black history.
• “We will restore sanity to our educational system.” Meaning we will replace curriculums we dislike with our propaganda.

It is naïve to take it for granted that our democracy can’t be disassembled. Study what happened in Viktor Orban’s Hungary. That’s the model leaders of the backlash have in mind for the U.S.

An authoritarian right-wing populist won power in a democratic election and then consolidated control over the judiciary, the universities, the media, and other centers of dissent. Elections are manipulated to give the illusion of democracy.

Democracy needs defending. This generation has a rendezvous to cross its Edmund Pettus Bridge. Let them take inspiration from the courage and humility of leaders like the late John Lewis, a hero of Selma, rather than the arrogance and historical blindness of Vice President J.D. Vance.

Most of all, defending democracy depends on staying engaged — not retreating into silence and submission.

Howard L. Simon, Ph.D., served as executive director of the American Civil Liberties Union of Florida from 1997-2018. He is president of the Clean Okeechobee Waters Foundation.