Millions of travelers store extremely private information on their cell phones and laptops these days.
One worry when traveling through airports is the thought of other people getting access to that information.
Specifically, people worry about TSA agents and US Customs and Border Protection (CBP) agents checking their phones and computers when going through security and immigration/customs.
But what authority do these agencies really have when it comes to your personal phone, laptop, and other electronic devices?
In this article, I’ll break down whether or not TSA and CBP actually have authority to inspect and even detain your devices.
The results may surprise you a little bit but it definitely helps to be informed on this topic!
Table of Contents
Can the TSA check your electronic devices?
TSA is not a law enforcement agency and therefore lacks certain types of search and seizure authority.
According to communications from the TSA, the agency, “does not search electronic devices for electronic content that may be contained on the device, and does not extract data from passenger electronic devices.”
Electronic devices would mean things like phones, laptops, cameras, tapes, external hard drives, etc.
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TSA’s stated purpose
TSA stands for “Transportation Security Administration” and the purpose is to “strengthen the security of the nation’s transportation systems while ensuring the freedom of movement for people and commerce.”
Instead, they are focused on preventing people from bringing dangerous items like explosives on planes.
They also are not responsible for controlling our international borders, which means that they have not been granted special authority by the US government to engage in certain types of searches and seizures.
TSA screening and your electronic devices
Typically, whenever you head through TSA security you will place your phone in your carry-on/personal item or in one of the small bowls given to you at the x-ray conveyor belt.
If you don’t have TSA Pre-Check, you will take out your laptop and put it through the x-ray scanner separate from your luggage.
You’ll then head through a metal detector scanner or a full-body scanner with no electronic devices attached to your person.
While you are doing that, your electronic devices will go through the x-ray machine and be scanned by an agent.
At no time during this process should you be asked about the digital contents of your phone or other electronic devices.
In some cases, you could be asked to power on your electronic device to determine if it functions.
Your device also could be inspected to ensure that nothing is hidden inside of it such as contraband.
Also, you may need to show your device’s screen in order to show your boarding pass to a TSA agent.
But these type of interactions should be the furthest extent of any request related to your devices.
If they ask you to log-in to your device or unlock it, they are overstepping boundaries and you should feel okay with challenging their authority.
Basically, you should just ask for a TSA supervisor and tell them that you want 100% clarity as to their authority under the law for accessing the content on your electronic device.
Hint: They won’t be able to provide you with any.
Even if you are subject to SSSS, which is a heightened security screening that can be applied randomly, the contents of your phone and or laptop should still not be something that gets inspected.
The device might get swabbed for traces of explosives but a heightened security search should not involve you sharing the contents of your phone.
So if you are traveling domestically, that should give you a little bit of comfort knowing that the contents of your devices (e.g., files, photos, videos, etc.) cannot be searched by TSA.
But if you are traveling internationally, it is a much different story.
Related: TSA Approved Locks Guide (Worth It?)
CBP’s authority to inspect your devices
Unlike TSA, CBP has law-enforcement authority.
Not only that but they have authority to inspect the digital contents of your electronic devices when you are entering the United States as spelled out in their guidelines.
So CBP can definitely check your phone, camera, laptop, tablet, external hard drive, etc.
Where does this authority come from?
CBP is charged with “keeping terrorists and their weapons out of the U.S. while facilitating lawful international travel and trade.”
In order to carry out these duties, CBP must:
“determine the identity and citizenship of all persons seeking entry into the United States, determine the admissibility of foreign nationals, and deter the entry of possible terrorists, terrorist weapons, controlled substances, and a wide variety of other prohibited and restricted items.”
Various laws give CBP authority to enforce searches and detentions including: 8 U.S.C. § 1357 and 19 U.S.C. §§ 1499, 1581, 1582.
US Supreme Court cases also have previously held that routine searches that take place at the border do not require reasonable suspicion, probable cause, or even warrants.
That’s because according to the law, you have a reduced expectation of privacy at a border crossing, whether you are coming in or going out.
How effective are these laws at helping CBP carry out their duties when it comes to devices?
According to the CBP, these border searches for electronic devices have:
“resulted in evidence helpful in combating terrorist activity, child pornography, drug smuggling, human smuggling, bulk cash smuggling, human trafficking, export control violations, intellectual property rights violations and visa fraud.”
So CBP agents have a much higher level of search and seizure authority than TSA agents and they may also be actively looking for specific types of digital content located in electronic devices to further their mission.
The case law is still evolving on how exactly electronic devices should be handled at borders but it’s prudent to assume that CBP will err on the side of having access to your devices for now.
How often does CBP make these searches?
It’s actually pretty rare for CBP to inspect electronic devices.
Consider that in the fiscal year of 2019, CBP processed more than 414 million travelers at ports of entry and only conducted 40,913 searches of electronic devices.
That means that they only searched .01% of international travelers.
Here is a look at the month-by-month numbers of electronic device searches from 2017 to 2019.
Why do people get chosen for an inspection of their electronic devices?
Anybody leaving or entering the US is subject to inspection, search, and detention.
So anytime you’re traveling internationally you are fair game for an inspection.
However, there are quite a few specific reasons why you might be selected for an inspection and these include:
- Incomplete travel documents
- Improper visa
- Prior violations of CBP enforced laws
- Name matches name on government watch list
- Selected for a random search
What type of searches are done?
When it comes to searching your devices, CBP agents will typically engage in either a “basic search” or an “advanced search.”
When engaging in a basic search, the agent does not need to have any suspicion.
That’s right, they can simply pick you out of a crowd and say, “Hey you, let me see your phone” with zero suspicion about what you’re doing.
And once you hand your phone over, they can start inspecting the contents of your phone, looking at things like social media apps, pictures, notes, etc.
An advanced search is a bit different.
This is when a CBP agent hooks up your phone to some type of external device with the intention to review, copy, or analyze contents.
Under most circumstances, these should take place only with the approval of a supervisor.
For these type of searches, there needs to be “reasonable suspicion” or some type of a national security concern.
What exactly creates a reasonable suspicion is a little unclear but it could be the presence of someone’s name on a watch list or other factors.
One thing is clear, probable cause is not needed nor is a warrant needed to inspect your phone.
Keep in mind, these searches can sometimes take hours. If you are flying back into the US and have a connecting flight, it’s possible that a search of your electronic device could force you to miss your connecting flight.
The CBP search is not supposed to allow agents to access information that is only stored remotely.
That is a pretty important factor to know.
If the contents purely exist on the cloud the agent should not have the authority to force you to login and show them.
One way that they ensure this is to disable data connections on the phone (airplane mode) so that they can only access content stored locally on the device.
The search of your device should be conducted in your presence unless there is some type of national security or law-enforcement risk.
This doesn’t mean that you will be able to watch the screen as they search your device, it just means you will be nearby as they explore your contents.
Worth noting, there are special rules in place to protect things like attorney-client privilege communications, medical information, and other sensitive content.
Password protected devices
A major question that people have is what happens whenever you have a laptop or phone password-protected?
Can they force you to give them your password?
The answer looks like no, they cannot force you but they can certainly make it very difficult (and futile) for you if you refuse to provide your password.
First, the guidelines say “travelers are obligated to present electronic devices and the information contained therein in a condition that allows inspection of the device and its contents.”
It says that if an officer is presented with a password-protected device, an officer “may request” your assistance in presenting the information in a condition that allows inspection of the device.
How exactly that request would play out in practice is something I’m very curious about.
The CBP agents I’ve encountered have been very friendly over the years in the vast majority of cases.
But if they are on the hunt for information they believe is relevant to national security, I’m sure they would have a different demeanor.
Their request for your assistance and giving them your password may come off as more of a demand but that’s just my speculation.
CBP agents are not limited to just requesting the password to unlock your device either.
They can also request/demand passwords to access information on the device that is accessible through apps.
I interpret this to mean that they could get you to log in to communication apps like WhatsApp to see who you have been messaging if that information is available off-line.
It’s reported that your password will be deleted or destroyed when there is no longer a need for the search.
What if you don’t give them your password?
The guidelines state that an officer can detain electronic devices for a reasonable period of time to perform a thorough border search and the search can take place off-site.
So basically, if you refuse to give them access to your phone or electronic device they can simply confiscate it and figure out a way to get in on their own.
Typically, the detention of your device should not exceed five days.
You should be given a form that notifies you about the devices approved for detention and that gives you a point of contact.
Once the inspection is complete you will be able to pick up your device at the location it was taken or you can pay to have it shipped to you.
However, if they find probable cause they can retain your device.
For example, if they find evidence of you engaged in crime you most likely will not be getting your phone back as it will be subject to seizure under federal law.
Thoughts and concerns
The guidelines do offer a decent amount of clarity on how this process works.
I appreciate that they are straightforward with telling you that they do not need any suspicion to check your phone and that probable cause is not needed as well.
The biggest concern I would have is that it seems like if you don’t provide the agent with the passwords they are requesting, there’s potential for you to go through a pretty big mess with getting your device back.
It will likely be retained for several days and in some cases even a couple of weeks.
If you are US citizen you should still be able to enter the country but if you are a foreign citizen you may be denied entry.
When traveling domestically, you don’t need to worry about TSA searching the contents of your electronic devices such as your phone or your laptop.
However, when traveling internationally CBP has a lot of authority to inspect the contents of all of your electronic devices, even if they are password-protected.
Daniel Gillaspia is the Founder of UponArriving.com and creator of the credit card app, WalletFlo. He is a former attorney turned full-time travel expert covering destinations along with TSA, airline, and hotel policies. Since 2014, his content has been featured in major publications such as National Geographic, Smithsonian Magazine, Forbes, CNBC, US News, and Business Insider. Find his full bio here.