New guidance allows Customs and Border Patrol officers to continue conducting warrantless basic searches of electronic devices. This policy directive, coupled with the administration’s Executive Order on Enhanced Vetting, significantly increased electronic device searches by CBP. In June 2019, the government began collecting social media data of all visa applicants, including their usernames and the social media platforms used in the past five years. The privacy implications go beyond foreign national travelers and can extend to U.S. citizens and residents whose data may be inadvertently shared and stored on a device the government can now access.
Two federal courts of appeals have held that border searches of digital information require individualized suspicion. In Riley v. California (2014), the Supreme Court held that the police had to obtain a probable cause warrant to search the cell phone of an individual under arrest. In March 2018, the Eleventh Circuit addressed whether Riley’s reasoning extends to a search of a traveler’s cell phone at the border. In United States v. Vergara, a divided panel held that forensic searches occurring at the border, not as searches incident to arrest, do not require a warrant or probable cause.
The simplest solution is to minimize the data you carry when traveling. Inform officers if your device contains sensitive data, information protected by attorney-client privilege, confidential trade secrets or the like. According to CBP policy, privileged and/or confidential materials are subject to higher standards than general information.