Your Digital Privacy Rights When Traveling Abroad and Reentering the US

People in the United States have protections under the Fourth Amendment against unlawful searches and seizures. Authorities cannot just take your phone or search your computer without a warrant or probable cause to believe you committed a crime.

When traveling internationally, different privacy rules and protections will apply. And there is ongoing debate about the scope of Fourth Amendment protections when you reenter the U.S. through an international port of entry.

Under the border search exception, the U.S. government claims that protections against searches and seizures don’t apply at the border. This exception has generally been upheld by the U.S. Supreme Court. However, the Court has not ruled on the constitutionality of warrantless searches of cell phones or electronic devices at the border specifically, and there is ongoing debate about how the border exception applies to electronic devices.

Understand your legal rights and how to protect your data privacy when traveling. For more information on digital privacy protections during border inspections, contact an experienced international lawyer.

The Legal Authority of Border Agents To Search Your Devices

U.S. Customs and Border Protection (CBP) agents have authority to ask questions and ensure that people entering the U.S. aren’t violating federal laws or acting as a threat to national security. This includes authority to inspect electronic devices crossing through ports of entry at international airports and land-border crossings.

According to CBP, in fiscal year 2024, the agency searched the electronic devices of more than 47,000 international travelers. Most of these were basic searches without copies made of any data. However, more than 4,300 travelers had CBP perform advanced searches on their devices.

Customs agents have broad discretion at the U.S. border and ports of entry. There is a border search exception to the Fourth Amendment’s prohibition against warrantless searches and seizures. This gives border agents the right to conduct routine searches of people and their belongings without probable cause, reasonable suspicion, or a warrant when you come through customs after international travel.

However, the scope of Fourth Amendment protections at the border is a contentious legal issue. While the U.S. government claims broad authority to search electronic devices without reasonable suspicion, probable cause, or a warrant, civil rights groups continue to challenge some government actions as violating Fourth Amendment rights.

The U.S. Supreme Court has not specifically ruled on the extent of forensic searches of electronic devices at the border. Lower U.S. federal courts have found that different standards apply. Some courts require reasonable suspicion when conducting forensic searches of electronic devices. Other courts have found no limits for border officials conducting advanced data searches of phones and computers.

How Do Border Agents Conduct Searches of Your Electronic Devices?

If CBP wants to search your phone, you can tell them you do not consent, but they can still take your phone. The government claims they can keep your phone for five days, or longer, for partially undefined extenuating circumstances.

An advanced search involves connecting the device to review, copy, and analyze contents. According to CBP policy, advanced searches require senior manager approval and reasonable suspicion of national security concerns or border law violations.

If CBP asks for your password or biometrics to unlock the phone, your rights will depend on your legal status:

• If you’re a U.S. citizen or lawful permanent resident, you can refuse to unlock your phone. Customs officials can delay your detention and seize your phone to conduct a search. However, customs cannot deny your entry for refusing to give your password.
• If you are not a citizen or lawful permanent resident, customs officials can deny entry for refusing to provide your password.

Get a receipt if customs officials take your phone or device so you can get your property back after the search is over. If there is no evidence to provide probable cause of a crime, the government is supposed to destroy any copied information.

If you have privileged material on your computer protected by attorney-client privilege, notify CBP officers before they conduct a search. Customs officials are supposed to follow a different procedure for sensitive data subject to attorney work product privilege.

Can Border Agents Access Your Cloud Storage?

More and more of our sensitive information is in cloud storage. This includes sensitive medical information, personally identifying information, and financial information. Accessing this data can be done from anywhere through a website or app.

The cloud can give you additional security protections against unreasonable searches as long as you are not connected to your device. If your phone or computer is logged into a cloud storage account (like Google Drive or iCloud), a search of your device provides access to your cloud data.

Generally, searching cloud-based storage data is against CBP policy. However, other agencies or customs officials in other countries may want to search what you can access through cloud storage accounts. Make sure you log out of all your accounts before crossing the border to make the information more difficult to access.

Digital Privacy Protections in Other Countries

Privacy protections for individuals can vary greatly in different countries. Some countries offer similar protections to those offered in the U.S. against unreasonable searches. Some countries have more robust privacy laws, while others offer fewer privacy protections.

Use the U.S. Department of State’s travel advisories for the countries you plan to visit on your trip. The travel advisories in some countries have safety and security warnings related to seizing electronic devices and advising visitors of government monitoring and intercepting internet information and phone calls.

Secure Your Digital Information Before You Travel

If you’re worried about CBP or foreign customs officials seizing your devices, protect your data before you travel. You can also consider taking a separate phone or laptop that you just use for travel, which does not contain your sensitive information. Your employer may offer loaner devices when traveling to high-risk security destinations.

Back up any important information and sensitive data on a home or work drive before traveling. Limit what data you store on your devices. Log out of cloud storage accounts on your phone and disable cloud data apps. You can also add additional encryption protections on your mobile phone or laptop.

Standard Digital Privacy Protections When Traveling

Many of the standard data protection and encryption tools will help you avoid cybersecurity hacks when traveling through airports or using public Wi-Fi networks. These standard digital security steps include:

• Using VPNs on hotel or public Wi-Fi
• Using strong passwords for your account logins
• Using multi-factor authentication on your accounts
• Completing security updates before you leave home
• Enabling “find my device” on your mobile phone or laptop
• Using your power plugs instead of open USB charging stations
• Keeping watch over your digital devices and never leaving them unattended

Legal Advice About Digital Privacy Risks When Traveling

There are several factors that can make you a target for digital searches at the border, whether you are a visitor or U.S. citizen. Your country of origin, the countries you visit before returning to the U.S., and even your social media activity can increase your travel profile for additional scrutiny at the border.

Taking security steps before you travel can reduce the risks of compromising your digital privacy. If you think border agents overstepped their authority to search or seize your digital devices, stay calm and only give truthful answers. You may get flagged for a random inspection or have a name that matches another person of interest. Document the interactions and contact an international law attorney about your legal options.