TSA and Border Agents Can Search Your Phone, But What Are Your Rights?

Yes, you’ve read it correctly: The Transportation Security Administration (TSA) and Customs and Border Protection (CBP) are searching phones and other electronic devices at the border. While this has always been a policy, it has been ramped up significantly under the current administration. While this sounds like a massive invasion of privacy and potentially a violation of your Fourth Amendment rights, there are steps you can take to protect yourself and your property.

Below, we detail what precautions to take when traveling as well as what your rights are as a U.S. citizen or legal permanent resident.

How to protect your privacy from unwarranted phone searches

The best way to safeguard your devices and protect yourself is to delete, delete, delete. Do an audit of your phone and remove anything relating to hot-button issues right now, including support for Palestine; memes, group conversations, or texts criticizing the current administration; and anything in support of other countries the administration is deeming “unfriendly” to America.

It’s essential to note that border agents are only authorized to search what is already on the phone (i.e., they can’t download any new content). The protocol is to set the phone to airplane mode or disconnect it from the internet before the device search is conducted.

That’s why we recommend backing up your device's contents to the Cloud and then signing out. Additionally, sign out of all your social media accounts. As a precaution, never verbally relay your passwords. Insist on unlocking the device yourself.

As a failsafe, you can also buy a burner phone for use on international trips. That way, CBP or TSA can’t access your phone’s photos, apps, texts, and more.

Other tips to protect your privacy include:

• Putting all your social media accounts on private, as border agents can search public profiles
• Carrying a digital driver’s license
• Using end-to-end encrypted software like a private messaging app that Meta doesn’t own
• Setting up a virtual private network on your mobile devices to encrypt your internet traffic and mask your real IP address

Can border agents search your phone without a warrant?

Yes, absolutely. American citizens can refuse to turn over or unlock their phone based on the Fourth Amendment, but there is an exception in the amendment for border searches. Additionally, you may be detained even longer if authorities try to hold you to obtain a warrant, and CBP can still seize your phone even if you don’t consent to a search.

Customs and Border Protection can conduct two types of searches:

Basic searches: A basic search occurs when a CBP agent opens your phone in airplane mode to search only the contents of the hard drive, excluding your Cloud.[4] They will look through your messages and photos to see your content.

Advanced searches: Advanced searches require the approval of a manager and allow the CBP to use an external device to search your device. This type of search requires the agents to have a “reasonable suspicion” that you pose a threat to U.S. national security.

The CBP guidelines clearly outline that electronic devices are subject to inspection. Even still, the Fourth Amendment to the Constitution protects citizens from “unreasonable searches and seizures without a warrant.” On this basis, the American Civil Liberties Union (ACLU) has challenged the CBP’s right to conduct device searches based on “reasonable suspicion.” 

Additionally, there were two cases, Riley v. California (2014) and Carpenter v. United States (2018), that stated people’s phones are subject to “a reasonable expectation of privacy.”[1] Because of those provisions, American citizens have the right to refuse handing over their phone and cite the Fourth Amendment as the reason, even if the CBP argues that the Fourth Amendment doesn’t have authority at the border.[2]

The U.S. Constitution protects not only American citizens but also international travelers who are in the country, even if their occupancy is unlawful.[3] Whether you’re a U.S. citizen, a lawful permanent resident (LPR), or a visitor who enters legally and intends to leave at the correct time, you have the right to privacy on your devices — but not when entering or reentering the U.S.

What if you’re a U.S. citizen?

U.S. citizens can’t be denied entry into the country for refusing to allow their devices to be searched. This doesn’t mean that you can’t be detained while the CBP tries to intimidate you. And agents have the right to seize your electronic devices, anyway. Your citizenship or LPR status may be challenged, so you need to make sure you have all of your documents proving your residency.

Can the TSA legally check your phone?

Unfortunately, this is not a straightforward answer. Legally, no, the TSA can’t search your phone. The CBP is authorized to search phones, but only when you are reentering the United States, not when you are departing.

However, there may be instances where the TSA can search your phone, especially if you have suspicious items in your possession.[5] However, deeming what is suspicious may be subjective. We wish we could give you a certain answer, but we live in uncertain times.

If the TSA demands to search your phone, you can request an explanation and to speak with a supervisor. You also have the option to file a complaint with the TSA if you feel your rights have been violated.[6]

Can you refuse TSA searches?

If you are a U.S. citizen, you can refuse to unlock your phone. You can’t be denied entrance into the country for this refusal. Just know that there’s a chance your device may be confiscated if you refuse. On the other hand, you can’t refuse a search of your physical property, including bags, clothing, and your person.

Does the Fourth Amendment protect U.S. citizens from border phone searches?

Currently, the Fourth Amendment is being tested, as some argue that it takes effect at the border, while the CBP argues that it’s not valid during border checks. We expect to see challenges to border searches reach the Supreme Court, similar to those in Riley v. California (2014) and Carpenter v. United States (2018).

We hope to see further clarification on whether the Fourth Amendment protects against unjustified search and seizure at the border. Until then, take precautionary steps when crossing the U.S. border. If you are worried, contact the ACLU for more information on your specific circumstances. And consider donating to the ACLU so they have the funds to continue to fight for the rights of anyone in the United States.

FAQs

Bottom line: What to expect when crossing the U.S. border

When crossing the U.S. border, be prepared for your devices to be searched. While not everyone is subjected to searches, it has always been a possibility that has become increasingly utilized, even in Canada. U.S. citizens can’t be denied entry into the country if they refuse device searches, but their devices may be taken from them as a result of the refusal.

Due to the lack of consistency across checkpoints, we anticipate that cases will be brought to the Supreme Court regarding the validity of the Fourth Amendment's protection against illegal search and seizure at the borders.

For right now, the best course of action you can take is to delete any politically motivated content from your socials, chats, and devices. A good rule of thumb is to make your social media accounts private from the start. If you’re asked to be searched, ask questions, document what’s happening, and know your rights.