The Bottom Line
- The US government has an increased ability to search citizens’ and visitors’ personal technology at the border in the name of protecting “territorial integrity.”
- There is widespread judicial approval for suspicionless searches of digital devices, but recent challenges are garnering judicial pushback in New York.
- Travelers concerned about privacy at border checkpoints should consider using encrypted devices and consider the risks of device seizures.
From intimate conversations and medical records to banking details and precise location data, our smartphones, laptops, and other personal tech tools offer a “kaleidoscopic view of the user’s whole life”—often revealing more than a search of one’s home ever could. While the Fourth Amendment shields against unreasonable searches and seizures of digital devices within the US, that protection looks very different at the nation’s borders.
International visitors, tourists, and even US citizens may be wondering what privacy rights they have, how to exert them, and the consequences for doing so. An equally pressing question is how a challenge to current practices at the border might proceed through federal courts.
Privacy Versus Sovereignty
The Fourth Amendment safeguards personal privacy, despite the absence of the word “privacy” in the amendment’s text. As a result, the concept of privacy has been shaped—and reshaped—by federal courts. Case law follows, albeit with a significant lag, as technology develops.
The US Supreme Court has gradually adapted to the technological realities of smartphones and cloud computing during the past decade. In Riley v. California, the Supreme Court unanimously ruled that police must generally obtain a warrant before searching the digital contents of a smartphone following an arrest. The court emphasized that smartphones are unlike other objects a person carries because they carry vast personal histories.
Yet the border operates differently. Privacy yields substantially to the government’s “paramount interest in protecting its territorial integrity.” As a sovereign nation, the US is authorized to stop and examine all persons and property crossing into the country without any suspicion of criminal activity.
CBP Searches
US Customs and Border Protection is charged with protecting the US “from entrants who may bring anything harmful into this country.” Searching digital devices at the border can uncover contraband such as child pornography, terrorist propaganda, drug trafficking evidence, or fraud. If agents suspect someone of intending to work unlawfully while on a tourist visa, a smartphone might reveal incriminating job offers or communications.
Almost uniformly, courts hold that CBP can search any traveler’s device—even without suspicion—provided it’s a routine manual inspection, which includes scrolling through apps, photos, and texts. Manual searches are limited to data stored locally on the device but agents are rarely expert in making instantaneous determinations on whether apps, photos, documents—anything really—is stored in the cloud but temporarily cached on the device itself (and therefore, off-limits).
Instead, courts expect searches to be tempered by CBP agents themselves when considering the practical realities of processing more than one million travelers per day.
If agents believe deeper investigation is warranted, they can escalate to a forensic search using specialized tools. In these instances, most jurisdictions require reasonable suspicion, a legal standard that demands articulable facts suggesting criminal activity, but a lesser threshold than would be required to search a smartphone inside US borders.
A traveler’s phone more often will be temporarily confiscated to facilitate a forensic examination. Devices may be detained indefinitely as long as the time period is reasonable under the circumstances of each search, and CBP may store extracted data for up to 15 years.
Rare Judicial Pushback
Some federal courts, especially in New York, are rethinking the “routine” label when it comes to digital searches. In 2023, for example, US District Court Judge Jed. S. Rakoff pushed back against the government’s “very strong interest in preventing unwanted persons or items from entering the country.”
Rakoff held that the governmental interest in searching a digital device at the border is “relatively weak.” Considering the growing popularity of cloud-based storage, the court found that stopping a smartphone from entering the country doesn’t have the same effect as barring physical contraband at the border. Rakoff further noted that no traveler would reasonably expect to forfeit privacy interests in information stored on a smartphone simply by carrying the device through a port of entry.
More recently, courts in the Eastern District of New York, which has jurisdiction over New York City’s primary port of entry, have held that digital device searches are more akin to bodily intrusions than luggage checks, thus mandating border agents demonstrate some level of suspicion to justify the intrusion given the personal dignity and privacy interests at stake.
Exerting Your Rights
These recent decisions acknowledge that the Supreme Court hasn’t yet spoken on the strength of a traveler’s privacy interest in information stored on a cellphone when presenting at a port of entry—and more pointedly, whether any search of a traveler’s device can be considered as routine as demanding a passport.
Citizenship status matters. US citizens can’t be compelled to unlock a digital device and may not be denied entry for refusing a device search, but CBP can detain the device. Legal permanent residents have similar protections.
Visitors aren’t protected in the same way. Visa holders and tourists (even those arriving with pre-approved Electronic System for Travel Authorization permits) who decline a digital search risk being denied entry, having their visa canceled, or being deported. For them, refusal can be treated as grounds for inadmissibility into the US.
Enrollment in trusted traveler programs such as Global Entry might reduce scrutiny, but such programs don’t limit CBP’s legal power. Because border agents wield wide authority, any paperwork inconsistencies or digital evidence suggesting grounds for inadmissibility may be sufficient to refuse entry. Current laws allow CBP agents to look for visual, textual, or digital signs of wrongdoing without any legal suspicion as long they are acting in furtherance of CBP’s mission.
Fifth Amendment and passwords. Courts generally find that using biometric authentication (fingerprint or face scan) doesn’t violate the Fifth Amendment, but typing in a passcode might. In New York, some judges have afforded greater protection to travelers who refuse to share passcodes because the “revelation of a passcode requires the accused to reveal the ‘contents of his mind.’” However, these rulings aren’t universally applied.
Right to counsel: limited or none. Travelers don’t have a guaranteed right to an attorney during primary or secondary inspection at the border. While some travelers have been allowed to contact legal counsel, this is discretionary and isn’t required by law. The Sixth Amendment right to legal counsel only arises after an arrest or prolonged detention.
In most cases, border inspections don’t meet that threshold. As a practical matter, someone seeking legal representation may already have had their phone confiscated.
Digital vetting before and beyond the border. Visa holders and applicants are especially vulnerable to digital scrutiny because visas are discretionary privileges, not entitlements. Beginning in the Biden administration, applicants for student and work- and study-based exchange visitor visas were sometimes asked to disclose social media usernames as a necessary form of identity verification.
As of June 2025, the State Department also instructs consular officers to require student and exchange visa applicants to set their social media accounts to public during the application process.
This policy is intended to screen for content that endorses or promotes “antisemitic terrorism.” While no federal rule mandates public profiles, embassies abroad can condition visa approval on compliance with these digital vetting measures.
Because visa issuance is discretionary, refusal to follow digital demands can lead to visa denial. Noncitizens have little constitutional protection in this context.
Future Legal Challenges
The doctrine of plenary power gives the executive branch sweeping control over immigration policy. Courts typically review such actions using the lenient “rational basis” standard unless there’s clear evidence of discrimination against protected groups.
That said, the scope of border searches is increasingly under legal scrutiny. While past digital searches have revealed dangerous materials, such as explosives instructions or drug trafficking plans, and although visa issuance is a privilege affording applicants limited recourse, the government’s interest in national security doesn’t automatically outweigh all privacy concerns.
Following the 2025 Supreme Court decision in Trump v. CASA Inc., which narrowed the scope of nationwide injunctions, legal strategies for challenging executive actions may shift, increasing the importance of class action litigation. Class actions are now the only viable route to enforceable nationwide relief, although class certification is procedurally rigorous.
Considering recent decisions, the Eastern District of New York may be a particularly appealing venue for class-based litigation challenging digital device searches at the border on Fourth Amendment grounds. If travelers or visa holders with similar injuries—such as confiscation of phones or social media-based denials—band together, they could form a certified class to pursue broader remedies collectively.
Looking Ahead
Digital privacy rights are sharply diminished at the border. Travelers concerned about privacy should power off devices at border checkpoints, use encrypted or separate “travel-only” devices, back up all data, and consider the risk of device seizure before refusing a digital search.
Short of policy reform, the government’s ability to inspect digital content will remain vast—and largely unchecked—unless and until the Supreme Court rules definitively on digital privacy at the border and balances the scales between sovereign border enforcement and the constitutional promise of privacy.
This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.
Author Information
Steven M. Silverberg is counsel at the litigation boutique Hoguet Newman Regal & Kenney in New York City. Over the last 15 years he has regularly litigated Fourth Amendment challenges and class actions in federal courts.
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