Does Privacy Exist at the U.S. Border?
An Update on the Fourth Amendment and Forensic Examination of Electronic Devices at the Border
Every year, millions of travelers, including American citizens, enter and exit the U.S., unaware that as they pass through seaports, land ports and airports alike, the privacy protections they enjoy elsewhere in the U.S. are greatly diminished. If the U.S. Department of Justice gets its way, they may have none.
The outer bounds of the government's vast authority to seize electronic devices at the border and forensically search the trove of personal, professional and potentially privileged information stored on them remain unsettled. Federal courts are increasingly split on whether agents must have reasonable suspicion – a standard requiring less evidence than probable cause – to forensically examine such devices, leaving open the possibility that agents may seize and rifle through a traveler's cell phone, tablet or laptop without being able to articulate what, if anything, the traveler is suspected of doing wrong, much less that a crime has been committed.
Due to the uncertain legal landscape and the fact that, owing to the divide among the federal courts, travelers may be subject to more or less invasive searches depending on where they happen to come and go, the U.S. Supreme Court can be expected to intervene. In the meantime, travelers – and companies that employ and sponsor them – should be aware of how agencies may conduct these border searches and mindful of their stakes.
A Border-Search Scenario
Consider the following true example of a border-search encounter. In summer 2025, a Canadian citizen and international business executive arrived at a major U.S. airport on a flight from Canada. Upon arrival, the traveler was interdicted by U.S. Customs and Border Protection (CBP) and Homeland Security Investigations (HSI) agents and directed to a secondary inspection.
Unbeknownst to the traveler, the CBP and HSI agents, at the direction of federal prosecutors, had decided prior to his arrival to detain the traveler and seize his electronic devices even though, as the agents and prosecutors discussed the day before, they lacked reasonable suspicion to search those devices for the offenses they were investigating. Indeed, they discussed how to drum up reasonable suspicion for other potential violations.
During the secondary inspection, the agents executed their plan, seizing and manually reviewing the traveler's devices, including two laptops and a cellphone, without any reasonable suspicion that a crime had been committed. Although the traveler was eventually permitted to leave the airport, his devices were confiscated.
What happened next may be surprising to many. The agents shipped the devices 800 miles away to an HSI office. When the devices arrived, an HSI analyst forensically imaged them, meaning that the entirety of their contents, totaling more than a terabyte of data, was extracted, parsed and rendered into digestible formats. Over the ensuing six months, agents and prosecutors periodically accessed, queried and reviewed that data, including personal and business messages and attorney-client communications, without limitation. And all of this was done without the approval of a judicial officer.
In defending these maneuvers, the government argued that the detention and forensic imaging of the devices was a routine border search that did not even require reasonable suspicion. The implications of this position are unsettling: Anyone arriving in or departing from the U.S., including the many millions of Americans who do so annually, is subject to having government agents take his or her phone on nothing more than a whim, detain the device for months on end, extract all of its data (including privileged communications), distribute those digital contents among the vast reaches of the government's investigative bureaucracy and search the files (including myriad privacies ranging from medical records to love letters to photos of family members) without limitation or judicial oversight.
The Legal Framework: Border Searches of Electronic Devices
The Border-Search Exception to the Fourth Amendment
The Fourth Amendment generally requires investigators to obtain a warrant to guard against unreasonable searches and seizures. A border search is an exception to the warrant requirement, but it is not unlimited, at least in theory. Routine border searches – such as brief questioning, luggage inspections and manual reviews of electronic devices – may be conducted without any particularized suspicion. On the other hand, courts have held that nonroutine border searches – those that seriously invade a traveler's privacy – require at least reasonable suspicion.
The Supreme Court has not directly addressed whether the forensic examination of electronic devices seized at the border constitutes a nonroutine search necessitating reasonable suspicion. But in Riley v. California, 573 U.S. 373 (2014), the Court recognized the inherently private nature of digital data in the modern age and heightened privacy interest individuals have in the contents of their electronic devices. For these reasons, the Court also acknowledged that searches of such devices have the potential to be uniquely intrusive.
Notably, CBP policy distinguishes between "basic" and "advanced" searches of electronic devices. A basic search involves an officer's review or analysis of information residing on the device, which may include documenting what is observed. An advanced search occurs when an officer connects equipment to copy or analyze the device's contents, unless doing so merely makes those contents available for inspection. A forensic examination qualifies as an advanced search. Under CBP policy, an officer may conduct an advanced search only with supervisory approval and upon reasonable suspicion of activity violating the laws CBP enforces or administers or, absent individualized reasonable suspicion, when a national security concern exists. Officers must document the factors establishing reasonable suspicion when conducting an advanced search.
The Current Circuit Split
Several federal circuits have addressed the question of what constitutional standard governs forensic searches of electronic devices at the border, including whether such a search is nonroutine, thus requiring reasonable suspicion. Other circuits are undecided. The U.S. Courts of Appeal for the Second, Fifth, Seventh and Eighth Circuits have expressly left open the precise standard governing the forensic examination of electronic devices at the border. The Third, Sixth, Tenth and D.C. Circuits have not directly considered the issue.
|
Circuit |
Key Decision(s) |
Does Forensic Examination of Electronic Devices at the Border Require Reasonable Suspicion? |
|
First |
Alasaad v. Mayorkas, 988 F.3d 8 (1st Cir. 2021); United States v. Qin, 57 F.4th 343 (1st Cir. 2023) |
Likely yes. Though the First Circuit has not explicitly ruled on the issue, a basic search of electronic devices may be performed without reasonable suspicion. Examples the First Circuit has provided of basic searches include the manual review of electronic devices or limiting the quantity of information available to reviewing officers. Moreover, if what started as a border search becomes disconnected from efforts to regulate the border and prevent border-related crime, the search requires a warrant and probable cause. |
|
Second |
United States v. Irving, 452 F.3d 110 (2d Cir. 2006); United States v. Levy, 803 F.3d 120 (2d Cir. 2015); United States v. Alisigwe, No. 24-960, 2026 WL 2751713 (2d Cir. Sept. 17, 2026) (designated for publication) |
Undecided. In the Second Circuit, highly intrusive nonroutine searches require reasonable suspicion. Thus far, however, the Second Circuit has limited highly intrusive nonroutine searches to those of the person, such as body-cavity or strip searches, rather than of property. Nonetheless, the Second Circuit has explicitly left open the question of whether sophisticated forensic search methods or off-site forensic analysis of phone data qualify as nonroutine searches requiring reasonable suspicion. |
|
Third |
Bryan v. United States, 913 F.3d 356 (3d Cir. 2019) |
Undecided. However, the Third Circuit has held that a search of a cruise-ship cabin at the border is nonroutine and requires reasonable suspicion because of the passenger's high expectation of privacy and level of intrusiveness. |
|
Fourth |
United States v. Kolsuz, 890 F.3d 133 (4th Cir. 2018); United States v. Aigbekaen, 943 F.3d 713 (4th Cir. 2019); United States v. Cardozo, 181 F.4th 461 (4th Cir. 2026) |
Yes. The forensic search of a cellphone or similar electronic device must be treated as a nonroutine border search, requiring at least reasonable suspicion. Moreover, to invoke the border-search exception to the probable-cause and warrant requirement, officers must have reasonable suspicion of an offense that bears a nexus to the border-search exception's purposes of protecting national security, collecting duties, blocking entry of unwanted persons, or disrupting efforts to export or import contraband. Officers cannot invoke the border-search exception on behalf of a generalized interest in law enforcement or combatting crime. |
|
Fifth |
Malik v. DHS, 78 F.4th 191 (5th Cir. 2023); United States v. Molina-Isidoro, 884 F.3d 287(5th Cir. 2018) |
Undecided. The Fifth Circuit has expressly left open the issue of what standard applies to the forensic examination of electronic devices at the border. However, the Fifth Circuit agrees that nonroutine searches require reasonable suspicion. |
|
Sixth |
United States v. Stewart, 729 F.3d 517 (6th Cir. 2013) |
Undecided. However, similar to the First Circuit, the Sixth Circuit has determined that extended border searches – occurring when the subject's relationship becomes attenuated with the border – require reasonable suspicion. |
|
Seventh |
United States v. Eta, 180 F.4th 936 (7th Cir. 2026) |
Undecided. The Seventh Circuit has not resolved whether an intrusive, forensic examination of electronic devices requires individualized suspicion or whether, if so, that suspicion must be tethered to the purposes underlying the border-search doctrine. But the Seventh Circuit has classified a routine search of an electronic device as a manual search that does not permit the agent to download and peruse the device's entire contents, which makes it less likely the agent will access metadata, encrypted files, or deleted contents. |
|
Eighth |
United States v. Xiang, 67 F.4th 895 (8th Cir. 2023) |
Undecided. The Eighth Circuit has explicitly left open the issue but observed that distinguishing between routine and nonroutine searches of electronic devices at the border is likely appropriate, particularly given the heightened personal privacy interest in electronic devices, as the Supreme Court recognized in Riley. |
|
Ninth |
United States v. Cotterman, 709 F.3d 952 (9th Cir. 2013) (en banc); United States v. Cano, 934 F.3d 1002 (9th Cir. 2019) |
Yes. A comprehensive and intrusive forensic search of an electronic device at the border requires a showing of reasonable suspicion. Additionally, the border search must be conducted to enforce laws related to the border and not for general law enforcement purposes. |
|
Tenth |
United States v. Williams, 942 F.3d 1187 (10th Cir. 2019) |
Undecided. The Tenth Circuit has declined to hold that searches of personal electronic devices at the border always require reasonable suspicion but has not determined whether more advanced searches of such devices do. |
|
Eleventh |
United States v. Touset, 890 F.3d 1227 (11th Cir. 2018); United States v. Pulido, 133 F.4th 1256 (11th Cir. 2025) |
No. No reasonable suspicion is required to forensically search an electronic device, comparing a forensic search to the search of other personal property not requiring such suspicion. |
|
D.C. |
Abdellatif v. DHS, 109 F.4th 562 (D.C. Cir. 2024) |
Undecided. The D.C. Circuit acknowledges that not every border search is appropriate absent reasonable suspicion but has not defined the contours of which types of searches require the more heightened standard. |
Ripe for Supreme Court Review
On the question of whether reasonable suspicion is required for the forensic examination of electronic devices at the border, the existing circuit split, particularly as it deepens, is likely to trigger Supreme Court review before long. Until then, travelers and businesses should be aware of the uncertainty that pervades the permissible scope of border searches of electronic devices. The government has, in some cases, taken the position that it may seize such devices without any individualized suspicion of wrongdoing – and the applicable legal standard may vary depending on the circuit in which the traveler crosses the border.