If you refuse to unlock your phone at the border, you could face severe consequences, including having your phone confiscated, being detained, or being refused access to the US. CBP has broad authority to seize and search electronic devices without a warrant or even probable cause.
If you have more questions about border crossing and checking electronic devices, you can speak to an immigration lawyer for guidance.
CBP Has the Right to Check Your Phone at the Border
Normally, the Fourth Amendment protects individuals in the US from arbitrary search and seizure by law enforcement. However, there are exceptions to this rule, specifically for border crossings.
US Customs and Border Protection (CBP) operates under a border search exception, which allows them to search the property of individuals entering the country. As such, CBP can seize and inspect your phone at the border without a warrant, probable cause, or even a reasonable suspicion.
The US Supreme Court and other federal courts have consistently ruled that the government has the right to search property at the border for the purposes of promoting national security. So if a CBP agent asks for your phone, you cannot refuse without risking consequences.
CBP Can Perform Two Types of Phone Searches
Directive No. 3340-049A authorizes CBP to perform two types of searches on electronic devices at the border:
- Basic search. With a basic search, a CBP officer may access a phone and search it manually for information. This includes information about text messages, emails, contacts, recent calls, downloaded images, and app activity. Officers don’t need any reason to perform a basic search of electronic devices.
- Advanced search. With an advanced search, CBP will take your phone and hook it up to a device that makes a copy to analyze its contents. Officers must have a reasonable suspicion to perform an advanced search and must first get authorization from a higher-level supervisor.
If a phone search cannot be completed at the border, CBP can confiscate your phone and keep it for up to five days. CBP can request to keep your phone for additional seven-day increments if deemed necessary.
What Happens if I Refuse a Phone Search at the Border?
US citizens and Green Card holders cannot be refused entry into the US for refusing to unlock their phones or give a password. However, CBP can take your phone or delay your entry into the country.
If you have an immigrant visa, CBP can deny you entry into the country for refusing to surrender your phone. You are also not entitled to have an attorney when CBP checks your phone. If you choose to refuse a phone check, you should weigh the consequences.
What Should I Do if CBP Requests to Check My Phone?
If you are an immigrant, it’s likely that CBP will request to check your phone when crossing the border. You shouldn’t try to refuse or physically resist the officers, as this could lead to your arrest and charges of obstruction of justice.
Below are some tips for dealing with CBP asking for your phone:
- Stay calm and don’t argue with the officer. Arguing will get you nowhere and will make things worse.
- Don’t interfere with or block the search by giving a fake password. You can refuse to give a password, but the officer will likely use a tool to access the phone.
- You have the right to ask for a custody receipt afterward. A custody receipt will list what information was taken and why, and provide contact information for CBP.
- After receiving your phone back, change any passwords you provided to CBP.
If no probable cause is found, CBP can only hold copied phone data for up to 21 days, after which it must be deleted. However, information that is deemed relevant to an investigation can be held for up to 15 years.
How to Safeguard Your Privacy and Security
You shouldn’t refuse a phone search, as interfering with the search can result in significant consequences.
But, you can take steps to safeguard your privacy and limit the amount of unnecessary exposure:
- Consider using a travel-only phone or a phone with a limited amount of data usage.
- Before traveling, back up and delete sensitive personal data from your phone (note that it may still be possible for CBP to access deleted data).
- Turn off Wi-Fi or turn on airplane mode to prevent the phone from syncing with the internet.
- Sign out of sensitive apps, email accounts, and cloud storage accounts.
CBP can still check the contents of your phone, but taking precautionary steps can help minimize the amount of sensitive information they can access.
Mendoza Law Firm: Immigration Lawyers
Do you have more questions about CBP phone searches at the border? If so, contact Mendoza Law online or call today to speak to an immigration lawyer.