Border Searches of Electronic Devices in 2025 and a look into 2026
Border Search of an iPhone:
A Head-On Collision between Privacy Rights and Law Enforcement Review
Border searches of phones, laptops, and tablets have become one of the most significant—and unsettled—issues in Fourth Amendment jurisprudence. As CBP expands its use of electronic-device inspections and forensic tools, courts are fractured on what the Constitution permits. This primer provides an overview of CBP’s authority, how device searches occur, what happens when a traveler refuses to provide a password, and how the circuit split will shape litigation in 2026.
Going forward, the Supreme Court is likely to take up the Constitutionality of a “border search” of an electronic device. As noted below, the circuits have fractured over what level of suspicion, if any, is required before agents may conduct a border search of a smartphone or laptop. This split, combined with the heightened privacy interests that attach to modern digital devices, makes the issue attractive for Supreme Court review.
Why Border Searches of Electronic Devices Matter
A cellphone carries years of personal data, communications, photos, financial information, and location history. An iPhone contains effectively a detailed record of a person’s private life that far exceeds anything agents could find in a traditional luggage search. Because a border search can expose this entire digital archive in seconds, the intrusion on personal privacy is exponentially greater than anything the border-search doctrine originally contemplated. Put simply, the invasion of privacy with a border search of an electronic device is extreme and significant for any traveler.
Nearly every traveler also carries this digital record of their personal and professional lives on his or her phone when crossing the border. CBP recognizes this reality and has significantly increased the frequency of phone and laptop inspections.
The Supreme Court has not ruled on the Constitutionality of border searches for electronic devices. But its ruling in Riley v. California is instructive and indicates how it likely would view the permissibility of warrantless border searches of electronic devices. In Riley, the Court explained that cellphones are not mere “containers” and cannot be searched without considering the unprecedented volume and sensitivity of the data such devices hold. Even though Riley involved a search incident to arrest, its logic reshaped the Fourth Amendment landscape by signaling that traditional exceptions cannot simply be applied to digital devices.
Because the Supreme Court has not explicitly applied Riley v. Caloifornia to the border-search exception, lower courts have developed different rules, resulting in a geographic patchwork of privacy protections.
The Legal Foundation: The Border Search Exception
The border-search exception authorizes federal officers to inspect persons and property at the border without a warrant or probable cause. Statutes such as 19 U.S.C. §§ 482, 1461, 1499 and 8 U.S.C. § 1357 form the basis of this authority. Courts have long held that electronic devices qualify as “property” under these laws, even though the volume and sensitivity of digital information present new Constitutional challenges.
Although Riley v. California strengthened privacy protections for digital data, its ruling did not explicitly involve the border. The Supreme Court has since declined to resolve the issue. This silence has led lower courts to construct their own standards for what Constitutional protections attach to an electronic device at the border. Without a Supreme Court ruling on this topic, circuits around the country have fractured the protections afforded to travelers at the border. The practical reality is now that a traveler’s Constitutional protections depend on the airport in which he or she lands.
CBP’s Framework: Basic vs. Advanced Searches
Under CBP policy and guidance, the level of Constitutional protection hinges on how the search is conducted. Routine, manual inspections of a device have historically been permitted without suspicion. More intrusive, forensic examinations often require at least reasonable suspicion. In practice, the manner and depth of the search determines whether the search remains a “routine” border search or crosses into a “forensic” search for which there is heightened Fourth Amendment protection.
Basic Searches
A basic search allows an officer to manually examine the contents of a device. Officers may review locally stored messages, photos, call logs, documents, and browsing history. Under CBP policy, no suspicion is required for this type of search.
Advanced (Forensic) Searches
An advanced search uses tools such as Cellebrite or GrayKey to extract, analyze, or copy digital data. CBP requires reasonable suspicion or a national-security concern before conducting a forensic search. These tools may recover deleted files, app data, or metadata not visible during manual review. Extracted data may be retained for up to 15 years.
How CBP Performs a Phone or Laptop Search
During a device inspection, CBP officers often ask the traveler to disable biometrics, enter a passcode, or place the device in airplane mode. If the traveler cooperates, the search may proceed manually or through forensic software. If the traveler declines to unlock the device, the device may be detained, sometimes for weeks, while CBP performs its own analysis.
These searches occur at airports, land crossings, and seaports. Case law instructs that such searches may occur at the actual border, which is also defined as its functional equivalent.
Can Travelers Refuse to Provide a Password?
Yes. CBP cannot compel a traveler to disclose a passcode or biometric unlock. There is no statute authorizing forced decryption of an electronic device. Courts have also not recognized a border exception to the Fifth Amendment protection against self-incrimination. However, a traveler’s refusal to provide a password is not without potential consequence. The outcome when denying agents access to an electronic device during a border search depends heavily on a traveler’s citizenship status.
U.S. Citizens
U.S. citizens cannot be denied entry for refusing to unlock a device. Nevertheless, CBP may seize the phone or laptop, question the traveler at length, and attempt forensic access without assistance. Refusal is usually followed by device confiscation, rather than entry denial.
Non-Citizens
Non-citizens, including visa holders and applicants for admission, may face the following consequence for failing to provide a password to unlock an electronic device at the border: denial of entry, withdrawal of their admission application or expedited removal.
In all cases, CBP may seize the device and attempt to access it using forensic tools.
The Circuit Split on Border Searches of Electronic Devices: Different Standards Across the Country
Because the Supreme Court has not resolved how Riley applies at the border, different circuits have developed different rules. Some circuits have not yet ruled on this issue. The following summarizes some of the leading authority from circuits that have addressed this issue.
Eleventh Circuit (FL, GA, AL): Agents have the broadest authority to border search an iPhone
The Eleventh Circuit is one of the most government-friendly jurisdictions as to the circumstances under which agents may search a traveler’s iPhone under the border-search doctrine. The Eleventh Circuit allows both manual and forensic searches without even reasonable suspicion.
Ninth Circuit (CA, AZ, WA): Agents must have reasonable suspicion for forensic searches
For an agent to conduct a warrantless search of an iPhone at the border, the Ninth Circuit requires reasonable suspicion for forensic searches and limits the scope of any border search to review of digital contraband. The Ninth Circuit imposes no such restrictions on manual border searches of electronic devices.
Fourth Circuit (VA, MD, NC, SC): Agents must have reasonable suspicion of a border crime for forensic searches
In the Fourth Circuit, a forensic search requires reasonable suspicion of a crime that has some nexus to the border. Under Fourth Circuit law, the border search exception does not allow for a forensic search where the underlying basis is to collect evidence for a primarily domestic offense. The Fourth Circuit has not ruled as to under what circumstances law enforcement may conduct a manual search of a traveler’s iPhone.
First Circuit (ME, MA, NH, RI, PR): Mirrors CBP Policy
In the First Circuit, a manual border search of an electronic device is viewed as a routine search and requires no individualized suspicion. By contrast, a forensic search of an electronic device is permissible only based on reasonable suspicion that the device contains contraband or evidence of a border-related offense.
Seventh Circuit (IL, IND, WI): Travelers have limited protections against border searches
In the Seventh Circuit, travelers have little protection against border searches of electronic devices. The general rule in the Seventh Circuit is that a manual border search of an electronic device, like an iPhone, requires no warrant or individualized suspicion. The Seventh Circuit has not resolved whether a forensic or advanced search requires reasonable suspicion. But the reasoning of its cases suggests a potential limitation on more intrusive digital examinations.
Second Circuit: Look for the decision in United States v. Smith
This issue is currently before the Second Circuit in United States v. Smith. A decision is expected in the coming months.
Several district courts, most notably in New York (EDNY and SDNY), have questioned whether warrantless “border searches” of an iPhone are Constitutional and have held that such searches require a warrant. These rulings signal a shift in how some district courts are now approaching the issue. The Second Circuit in United States v. Smith, 24-1680 (2d Cir.) is set to decide this issue any day now.
Practical Guidance for Travelers and Counsel Traveling at the Border
For Travelers
Limit the data stored on your device. Use strong passcodes and disable biometrics before traveling. Consider traveling with a “clean” secondary device. Understand that refusal may lead to seizure or delays.
For Professionals
Attorneys, journalists, researchers, and executives carrying sensitive data should establish border-crossing protocols. CBP’s handling of privileged or confidential information is based on internal policy, not Constitutional constraints.
For Defense Practitioners
Identify the controlling circuit immediately. The critical issue is whether the border search was conducted manually or forensically. This line is becoming more blurred as agents search across electronic devices using the device’s own technology. A corollary issue is the purpose of the search: whether it was conducted to collect evidence for a domestic crime or an offense that has some traditional nexus with the border. Answering these questions will determine the test for challenging any border search.
Frequently Asked Questions (FAQ)
1. Does CBP need a warrant to conduct a border search of my iPhone?
Generally, no. Manual searches require no warrant under the historical case law of most jurisdictions. But those decisions are now called into question based on the reasoning of Riley. Forensic searches may require reasonable suspicion or more, depending on the circuit.
2. Can I refuse to give CBP my iPhone password for a border search?
Yes. CBP cannot force password disclosure. But refusal can result in device seizure and immigration consequences for non-citizens.
3. Can CBP deny me entry for refusing to unlock my device for a border search?
A U.S. citizen cannot be denied entry. Non-citizens can.
4. How long can CBP keep my device as part of a border search?
CBP may detain devices for five days under policy, with extensions available. Forensic analysis may take longer.
5. Can CBP copy my data during a border search?
Yes. Advanced searches may extract, copy, or retain device contents for up to 15 years.
6. Are land borders treated differently than actual borders?
No. Airports, land crossings, and seaports follow the same rules.
7. Can a border search review material covered by the attorney-client privilege?
CBP has procedures for handling privileged content, but these are policy-based rules and may provide insufficient protection of the privilege.
8. If my iPhone is searched at the border, am I under investigation?
Border searches of digital devices are presumptively administrative and historically tied to customs and immigration functions. But in practice, law enforcement agents may use a border search to advance a criminal investigation. As such, a border search can be an early indicator of a criminal inquiry, especially for investigations involving national security, child exploitation, export controls, sanctions evasion or FCPA violations. If your phone is searched at the border, you should contact a white-collar defense attorney who can help determine whether the phone search was conducted for an administrative reason or instead used as a pretext for, and to advance, a criminal investigation.
Conclusion
Border searches of electronic devices sit at the intersection of digital privacy and customs authority. Because the Supreme Court has not provided definitive guidance on this issue, the circuits have adopted different standards, especially regarding forensic inspections and the purposes under which a search may occur. Travelers and practitioners should assume that device searches carry real risks and plan accordingly. Understanding the governing circuit’s precedent remains essential to anticipating how CBP will conduct a search and how courts will review any challenge to that authority.
Questions? Contact Scott Armstrong, an experienced white-collar defense attorney. Scott is a defense attorney for individuals facing federal investigations involving fraud and other white-collar offenses. To defend individuals in these cases, Scott relies on his litigation experience in Miami, Chicago, Houston, Denver, DC, Alexandria, Newark, Nashville, Knoxville, Detroit, Columbus, Los Angeles, and New York.
