A Northeastern legal expert explains the complexities involved with searches of phones and social media and what rights citizens and visitors have when entering the country.
In March, a French scientist was reportedly denied entry to the U.S. based on comments border agents had found on his phone that were critical of the Trump administration’s policies.
With the Trump administration ramping up its approach to immigration, more visitors have started to face similarly intense scrutiny when traveling to the country, especially with phone and social media searches.
That has raised a question visitors and U.S. citizens alike are increasingly facing at the nation’s borders: What rights do you have when entering the U.S., especially when it comes to your electronic devices?
Kyle Courtney, who teaches about cybersecurity and cyberlaw at Northeastern University, says the question of legality and rights is complex at the border.
“Crossing a border means crossing into a zone where the government’s power to search is at its strongest — and an individual’s privacy rights, in many ways, are at their weakest,” says Courtney. “You lose more privacy the closer you get to the border.”
Normally, government agents searching someone’s property would be restricted under the Fourth Amendment, which provides the right to be free from “unreasonable searches and seizures.” That includes a search of your body, home and other property. But as soon as someone approaches the U.S. border, things start to work differently, Courtney explains.
Under the border search doctrine, Customs and Border Protection agents have broad power to search people or property at the border. Any search at the border is considered “reasonable,” meaning no warrant or probable cause is required. That’s further complicated by the fact that the “border” can be broadly defined as a border-functioning location like an international airport or even within 100 miles of the U.S. border as drawn on a map.
In effect, it means that border and customs officers don’t need a specific reason to search your luggage or electronic devices.
“The power of the border agents is not clear to you or I when we’re just coming through, but when we stop at that desk and we show our papers … those folks actually have pretty broad powers that are outside what normally would be [allowed by] the Fourth Amendment,” Courtney says.
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.
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.”
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.