What to do with your cell phone at U.S. borders (yes, even citizens)

There’s apprehension around international travel and heightened security at U.S. borders among some professions, namely for immigrants, journalists, lawyers, and even influencers critical of the administration. On Sunday, Hasan Piker, a U.S. citizen and popular left-leaning political commentator, was stopped by U.S. Customs and Border Protection at Chicago’s O’Hare International Airport while returning from France, he said on his Twitch broadcast Monday. He shared he was taken to a private room and questioned about his views on President Trump, Gaza, and Hamas. 

“My big fear is if they were to ask for my phone,” Piker said of the incident with CBP. “Not that there’s anything incriminating in my phone, but I don’t want the (expletive) federal government inside of my phone.” 

CBP has the authority to search devices without a warrant, a policy that’s increasingly raising red flags for civil liberties groups. In his recent Twitch stream, Piker reminded viewers that the federal government could put the phone to your face to unlock your phone if you have biometric screening. He also mentioned that, despite potential chilling effects of sharing his experience, “you should know your rights, that you should not be fearful … especially if you are an American citizen, that these guys are gonna come after you and arrest you.” 

However, surveillance experts recommend erring on the digitally safer side whenever you can. As the use of facial recognition and other biometric tech continues to expand at airports and in public spaces, it might not always be possible: Last week, CBP announced plans to build a real-time facial recognition tool to photograph every vehicle passenger entering the U.S. by car. 

It’s part of a broader push toward biometric surveillance nationwide, according to William Owen, the communications director of the Surveillance Technology Oversight Project (S.T.O.P.): “We’re seeing government agencies like CBP and DHS build out massive surveillance networks with little transparency,” he says. 

We spoke with Owen and Albert Fox Cahn, S.T.O.P.’s executive director, about what to know now about travelers’ rights during a device search and how to protect your data before you fly. Edited excerpts:

Epicenter NYC: CBP has said that device searches are rare and highly regulated. What are you seeing?

William Owen: They are rare, but they’re also unpredictable. Under the Trump administration, it became harder to know who would be targeted and when. Things can shift quickly depending on the administration’s priorities, and what we’ve seen is more disregard for previous norms and practices.

There’s definitely heightened risk for people in particular professions, especially given the targeting of journalists, lawyers, and free speech in general under the current administration. And the way people are treated at the border can vary greatly based on race, ethnicity, national origin, and gender expression. Surveillance has long disproportionately impacted Muslim Americans, communities of color, and queer Americans.

Epicenter NYC: Are U.S. citizens, residents, and visa holders treated differently when it comes to device searches?

WO: We’ve seen how surveillance is affecting green card holders, visa holders, and international students. There’s been a real disregard for the law by the Trump administration. U.S. citizens must legally be admitted back into the country, but even then, CBP can work with law enforcement to use searches as part of broader investigations. So yes, citizens have slightly more protection—but not complete immunity.

Albert Fox Cahn: Your constitutional rights don’t depend on your citizenship. And we always want green card holders and visa holders to know they have the exact same rights as everyone else, but the border is the one place where the government has the broadest powers to retaliate against those who invoke those rights.

Epicenter NYC: What rights do travelers have when it comes to digital privacy at ports of entry, specifically with U.S. Customs and Border Protection?

AFC: Customs and Border Protection asserts broad authority to inspect travelers’ devices at ports of entry. The Fourth Amendment protects us all from warrantless searches, but the border search exception to the Fourth Amendment gives CBP broad powers to search travelers’ devices. It’s something that I expect to see contested in the courts quite a bit under this administration. CBP has claimed that they have the power to basically seize any device for nearly any reason and nearly any time. 

Travelers always have the right to remain silent and refuse to hand over their password. But for non-citizens, invoking your rights under this administration, alarmingly, can come at a price. We’ve seen people facing retaliation by Customs and Border Protection officers for any number of things. And with visa holders who aren’t legal permanent residents, CBP has broad powers to deny visa holders admissions to the United States. 

Epicenter NYC: What steps can people take to better protect their devices at the border?

AFC: First of all, the best protection is to travel without a phone. The next best option is to travel with a burner device that doesn’t contain sensitive information.

If you do have a device and are asked to unlock it, the first step is to power it down completely before going through immigration and customs. That disables biometrics like fingerprint and facial recognition. You can’t do that once you’re in a holding cell, but you can do it before your plane lands.

If you want to protect your data, it’s important to disable biometric passwords before you travel. It’s easier legally and practically for CBP to force someone to unlock a device using biometrics than it is to compel them to enter a passcode.

Epicenter NYC: Why is biometric unlocking easier for CBP to compel than a password?

AFC: So the Fifth Amendment protects you from testifying against yourself. That includes being forced to speak words, like a password, but not necessarily from being forced to perform an action, like using your fingerprint.

Think of it like this: police can make you hand over a key, but not tell them a combination. Courts are still divided on whether biometric unlocking counts as testimony, but it’s generally easier for the government to compel.

Epicenter NYC: If someone refuses to unlock their phone, will CBP still try to compel you?

AFC: They’ll ask regardless. The difference is in your ability to legally refuse. If you’re a U.S. citizen or don’t fear denial of entry, you may decide to refuse. But even [when you don’t], then, we’ve seen CBP retaliate. For example, people have handed over their phones and been denied entry because of what was found.

It’s also much harder to resist unlocking if the phone is set up with biometrics. Officers have been known to hold a phone up to someone’s face or press their finger on it. That’s almost certainly illegal, but it’s difficult to challenge on the spot.

Epicenter NYC: What happens if your device is seized?

AFC: There’s a difference between a custodial search, where they seize your device and hold it, and a non-custodial one, where they flip through it on the spot. Lawyers are actively pushing back against the powers CBP has claimed, and I expect this to be contested in the courts for years to come.

It’s important for travelers to know that if they want to invoke their right to protect their devices, they can do so by disabling biometric passwords such as fingerprints and facial recognition.

If your device is seized, contact us or another lawyer right away. You can go to court to try to get it back, but you have a limited window before they might hack into it. 

Epicenter NYC: How long is that window?

AFC: It really varies. Some phones can be hacked in minutes. Some take weeks. A small number may never be successfully cracked, depending on the model and software.

Epicenter NYC: Are there certain statements travelers should use to protect themselves legally if questioned by CBP?

AFC: If you’re being asked questions that make you uncomfortable or raise concerns, you always have the right to say, “I invoke my right to remain silent. I invoke my right to an attorney.” You don’t explain it, justify it, or expand on it. When people try to elaborate, they often end up undermining the whole point of invoking those rights.

We’ve seen cases where CBP partners with the FBI or other law enforcement agencies to ask questions on behalf of investigative agencies, to help prosecute people and put them in jail. So if CBP starts asking questions that go beyond what’s in your passport or tax return, like who you see, who you know, events you attend, your politics or your faith, many travelers will invoke their rights at that point. 

That said, if you’re a non-citizen, particularly a visa holder, invoking your rights can come at a cost.

Epicenter NYC: Can travelers opt out of biometric screening like facial recognition at the airport?

AFC: When you’re at TSA or using an airline that employs biometric boarding, you can opt out. Just tell them you’re opting out of facial recognition. I encourage people to do this; it helps push back against the normalization of mass surveillance.

Epicenter NYC: Are there any consequences for opting out?

AFC: Not for domestic travelers or people already in the U.S. That kind of biometric screening is different from what happens at the port of entry, where the government has much more power over noncitizens.  

Epicenter NYC: Are there specific types of digital content or online behavior that raise red flags with CBP?

WO: Unfortunately, yes. People have been targeted based on their online speech. While we don’t recommend wiping your phone completely—it can raise red flags—it is wise to delete specific texts, social media content, or other information you’re concerned about. Be sure to empty your trash or “recently deleted” folder too. Those are steps we recommend for improving digital security when crossing the border.

AFC: The more content you have, the more risk. We’ve seen green card holders targeted because of op-eds they’ve written. There’s no foolproof way to avoid scrutiny if CBP wants to retaliate. But traveling light, with less personal or political data, is usually safer.

Epicenter NYC: Can deleting apps or content right before arriving at the border cause problems?

AFC: Yes, it can. Deleting apps right before a CBP inspection could potentially be seen as obstruction of justice. Instead, plan ahead. Decide which apps you actually need before you travel. Legally, there’s a big difference between bringing only the apps you need and deleting data right before you get to a checkpoint. 

You can’t be charged with obstruction of justice just for wanting to travel light. I think it’s easy to explain to an officer that ‘hey, I was going to a country where I was worried about my device being taken. I just didn’t want that sort of risk.’

For a more comprehensive guide on how to protect the data on your devices at the U.S. border, see this resource from the Electronic Frontier Foundation.