Protecting Your Privacy in Case of Search and/or Seizure of Your Electronic Device at the U.S. Border

By Whittier Law Group

U.S. citizens and Green Card holders returning to the United States are often surprised to learn that their constitutional rights—particularly concerning the search and seizure of electronic devices (cell phones, iPads, PCs, etc.)—are significantly limited at the border. Customs and Border Protection (CBP) has broad authority under what’s known as the “border search exception” to the Fourth Amendment. This allows them to inspect luggage, personal items, and even electronic devices like cell phones without a warrant or probable cause.

However, this authority is not unlimited, and there are ways travelers can safeguard their privacy and respond effectively if their phone is seized.

The Legal Framework

The Supreme Court and various appellate courts have upheld CBP’s right to perform “routine” searches without suspicion. That said, federal courts have also recognized that highly intrusive or “advanced” searches of digital devices—especially those that bypass encryption or extract data—usually require at least “reasonable suspicion” (a lesser standard than probable cause) that the device contains evidence of a crime (see United States v. Ramirez, 2019 U.S. Dist. LEXIS 128853, United States v. Jenkins, 2013 U.S. Dist. LEXIS 208134, House v. Napolitano, 2012 U.S. Dist. LEXIS 42297). If you are asked by Customs and Border Protection (CBP) to hand over your device for inspection, ask why, and ask whether or not the agent has any reasonable suspicion that your device contains evidence of a crime. The answer of the CBP agent could indicate in later legal proceedings, whether the search was routine, or advanced and requiring “reasonable suspicion” or even probable cause.

Search or Seizure

Under the border exceptions to searches and seizures referred to above, and pursuant to CBP Directive # 3340-049A, a traveler to the U.S. is required to present any electronic device to a CBP officer for inspection (i.e., a search) when requested. However, the officer is only entitled to access the information contained on the device which is not encrypted or password protected.

It is the right of every U.S. citizen to refuse to provide their password to the CBP agent and still retain the right to re-enter the country. However, a non-citizen, including a Green Card holder who withholds their passcode from the CBP, may be refused entry and have their electronic device seized for further investigation and analysis. If the traveler consents to have the CBP agent inspect the contents of their phone at the border, they can enter the passcode themselves without revealing the passcode to the agent. This compromise may avoid a possible seizure.

Unlike a basic search, a seizure occurs when the CBP agent requires that the traveler leave their electronic device at the border to be sent to another location, under CBP authority, for further inspection and possible recording of the information contained on the device.

In the case of seizure, the traveler should demand a receipt for all property taken and ask for the name and badge number of the lead officer and all other agents conducting the search and seizure. This will assist your lawyer to later locate who has the electronic device and take whatever legal measures are necessary to restore possession of the device to the owner, after 30 days.

What You Can Do to Protect Your Privacy

While you may be required to hand over your phone, you can take proactive steps to limit access to your private information:

Minimize Local Data: Use a “travel” phone or temporarily remove sensitive apps and documents.
Enable Encryption: Ensure your device is encrypted and secured with a strong passcode.
Use Cloud Storage: Store sensitive documents in the cloud and log out of cloud accounts before crossing the border.
Turn Off Devices: Powering off your phone (or activating Airplane Mode) before inspection can sometimes prevent passive data extraction.
Do Not Volunteer Passcodes: While CBP may ask for passcodes, you are not legally required to provide them if you are a U.S. citizen. Green Card holders have similar rights but should consult an attorney before refusing.

If Your Device Is Seized

If CBP takes possession of your phone and you do not wish to provide the passcode:

Request Documentation: Ask for a receipt for your device and the name and badge number of the seizing officer.
Ask Questions: Inquire why the device is being seized and whether a manual or forensic search is planned.
Seek Legal Counsel: You have the right to request an attorney, particularly if the search appears highly intrusive.
Follow Up: Contact CBP or consult a lawyer to file a formal request for the return of your device. In some cases, litigation may be necessary.

Exercising your Constitutional Rights May Have Consequences

Refusing to comply with a lawful CBP request for your device passcode could lead to detention or prolonged questioning. While U.S. citizens cannot be denied reentry, refusal to cooperate could still complicate the return process. For Green Card holders, noncompliance might raise immigration concerns, especially if CBP alleges any connection to prohibited conduct. Therefore, permanent residents should always consult an attorney before traveling with electronic devises containing sensitive information.

But remember, you do have the right to refuse to give your passcode and if your device is seized it must be returned within 30 days, and no information may be removed from it without a lawful warrant, and the CBP cannot use the device to access your remote or Cloud stored information.

Also, if the CBP or other law enforcement agency seek to use information from your seized device against you, you have the legal right to seek a “suppression order” to prevent that information from being used.

Knowing your constitutional rights and exercising them may have short-term consequences and cause inconveniences, but in the medium-to-long-term, your very freedom from prosecution and incarceration may depend on your knowing and actively exercising these rights.

Final Thoughts

The law concerning digital privacy at the border is evolving. As legal challenges continue, future rulings may offer clearer protections. Until then, being informed, minimizing exposure, and respectfully asserting your rights remain your best defenses.

For assistance with border searches or recovering a seized phone, contact the Whittier Law Group (917-699-9197) for legal guidance tailored to your case.

The Links below contain further detailed information of CBP policies and procedures regarding the search and seizure of electronic devices:

https://www.cbp.gov/travel/cbp-search-authority/border-search-electronic-devices

https://www.dhs.gov/dhs-trip