Can Border Patrol Go Through Your Phone? A Legal Expert Explains What Rights Travelers Have Entering the U.S.
Routine search vs. non-routine search
At the heart of the issue is how courts and Customs and Border Protection define a routine search and a non-routine search, or basic and advanced search. A routine search of a phone would be a border agent flipping through your phone at the airport, while a non-routine search could involve an agent using equipment to review, copy and forensically analyze the contents of a device.
For a non-routine search, officers must have “reasonable suspicion” that a person or piece of property has ties to illegal activity. However, the Trump administration has started to expand that to include posts on social media that are critical of the administration’s policies or posts that might fall under what it defines as a national security threat.
With phones, the distinction is even more complicated and sensitive, given all the personal information people have on their phones now.
How have the courts ruled on the issue?
That’s partly why federal courts have struggled to come up with a universal approach. Some courts have upheld these searches as “reasonable,” treating electronic searches like routine luggage checks. Others, like a recent decision by a federal court in New York, have ruled border agents must have a warrant to search phones and laptops.
“If you land in Boston’s Logan [International] Airport, you’re governed by a case out of the First Circuit. If you land in Reagan National [Airport in Washington, D.C.], your rights are different,” Courtney says. “This is not clear. This is not the law of the land, which is why it’s upsetting.”
Given how confusing and murky this all is, what do travelers entering the U.S. need to know?
Courtney first emphasizes border agents must ask for your consent to search your phone or laptop. Once consent is provided, the distinction between routine and non-routine searches no longer matters and they can search a device as deeply as they deem necessary.
“So, you always want to ask to clarify if you’re being asked to voluntarily consent or if you’re being directed to open your device,” Courtney says. “It’s different.”
What are the consequences for not agreeing?
However, the consequences for not agreeing to a search changes depending on whether you’re a U.S. citizen. Generally speaking, visitors “have even fewer rights than U.S. citizens” at the border, Courtney says, and a foreign visitor who declines a search can be turned away at the border and refused entry.
Several courts have ruled that border agents can’t deny U.S. citizens entry for refusing a search, but they can still seize the device in question and potentially delay a citizen’s travel.
Courtney also says travelers who are concerned about their phones being searched should be mindful of what kind of password they have on their device. Increasingly, the courts have started to distinguish between a passcode and facial recognition and fingerprint scans.
“Verbally providing your password is considered compulsion of your testimony. If you’re speaking, that is protected by the Fifth Amendment,” Courtney says. “The physical act of providing a fingerprint is not testimonial according to some courts and, therefore, not protected by the Fifth Amendment.”
Although there is plenty of legal complexity to navigate, Courtney says it’s important “to understand that these border agents, although we just see them stamping our stuff, have incredible power under the system.”
“People are like, ‘The Fourth Amendment protects me. The Fifth Amendment protects me.’ Yes, but this is a big exception,” Courtney says.
Cody Mello-Klein is a Northeastern Global News reporter. The article is published courtesy of Northeastern Global News.
