Phones, Privacy, and Ports of Entry: No Warrant May Be No Problem

In June 2025, U.S. Customs and Border Protection (CBP) officers denied a Norwegian tourist entry into the United States. According to the traveler, CBP officers demanded access to his cell phone and expressed concern over a meme depicting U.S. Vice President JD Vance with a bald head. One officer reportedly described the image as “very clearly a piece of extremist propaganda.” CBP, however, stated that the meme played no role in the denial, instead citing the traveler’s admitted drug use as the basis.

Regardless of what occurred in this specific case, the incident underscores ongoing legal ambiguity around the scope and limits of border searches—particularly of electronic devices. If you have employees who are traveling internationally in the coming weeks and months—regardless of whether it’s for business or personal reasons—here’s an important issue you should consider.

What Counts as a Search—And What Requires Suspicion?

Under federal law, CBP has broad authority to “inspect, search or detain” any person or property entering or exiting the United States. At the border, the Fourth Amendment’s usual requirements—such as a warrant or probable cause—are significantly relaxed under what’s known as the “border search exception.” As the U.S. Supreme Court observed, searches at the border are deemed reasonable simply because they occur at the border. Accordingly, CBP distinguishes between two types of electronic device searches: basic and advanced.

A basic search involves an officer manually reviewing the contents of a device—such as emails, messages, or photos—without connecting it to external equipment. These can be conducted without any suspicion of wrongdoing under the border search exception.

An advanced search, by contrast, involves the use of external tools or software to access, copy, or analyze the contents of the device. According to CBP policy, this type of search requires reasonable suspicion of a legal violation or a national security concern. Approval from a supervisor is typically required. Courts have supported this distinction. For example, the U.S. 9th Circuit Court of Appeals (whose rulings apply to all Arizona employers) has held that forensic searches of electronic devices generally require reasonable suspicion.

Passwords and Consent

Whether CBP can compel a traveler to provide the password likely depends on the type of password. Individuals have a constitutional right to remain silent. However, some courts have concluded that the government may compel an individual to provide a fingerprint or even force them to apply their own finger to a phone to unlock it. While case law continues to evolve, the current distinction hinges on whether the act of unlocking is considered a form of communication (protected) or a physical action (not protected).

However, these requirements may not apply when the individual voluntarily consents to a search. CBP frequently asks travelers to unlock their devices, and doing so—even in response to a simple request—may be treated as valid consent under the law.

Refusing Access: What’s At Stake?

For U.S. citizens, refusal to unlock a device may result in delay or seizure of the device but cannot be used to deny entry. The same should be true for those who have previously been admitted to the United States as lawful permanent residents and have maintained their status.

Noncitizens and non-lawful permanent residents, however, do not enjoy the same protections at the border. Refusing to unlock a device or provide access—whether by denying consent or withholding a passcode—may be treated as a failure to cooperate with inspection and can lead to denial of entry.

Bottom Line

The legal framework governing border searches of electronic devices remains unsettled and continues to evolve. Travelers—particularly noncitizens—should be aware that device searches at the border are treated differently from those within the country. While CBP policies set some boundaries, much remains subject to interpretation and officer discretion.

Benjamin A. Nucci is a partner with Snell & Wilmer. He can be reached at bnucci@swlaw.com.

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