Know Your Rights: Protecting Digital Privacy at the Border

by Maya Autorino, Communications Intern

This guest post does not necessarily reflect the views or expertise of Human Rights First.

In a troubling escalation of digital surveillance last month, a French scientist was denied entry to the United States and sent back to France after border officials searched his phone and found messages critical of the Trump administration. While U.S. authorities now claim his political opinions were not the reason for his removal, his case is one of several in recent weeks in which travelers with content critical of the Trump administration on their devices have faced heightened scrutiny. “This current administration is doing something that no administration has done – they are attacking attorneys,” stated Dearborn human rights attorney Amir Makled, who was detained at the border for 90 minutes after refusing to surrender his phone to Border Patrol agents. Makled is currently representing a student involved in pro-Palestinian demonstrations at their university. This pattern of targeting individuals based on digital content raises alarming concerns about privacy rights and freedom of expression. The Trump administration’s repeated encroachments on these fundamental rights bear unsettling similarities to the early warning signs of authoritarianism.

Border patrol checking personal devices is not a new policy, but the Trump administration’s push to restrict entry into the United States has made what was once a rarity with due cause much more frequent. What is the common thread between some of these people who have been denied entry? Having anti-Trump content on their phones. There has been an increase in the use of digital surveillance at U.S. borders, especially among individuals from specific countries or groups that are seen as politically opposing the president. Legal advocates for civil liberties, such as the American Civil Liberties Union (ACLU), have argued that this growing focus on political content disproportionately impacts travelers critical of the Trump administration. One source told Agence France-Presse (AFP) that messages against Trump could be “qualified as terrorism” by the Department of Homeland Security.  

Suppressing political speech has long been a hallmark of authoritarianism. Under China’s “Exit-Entry Administration Law” for example, authorities have the power to prevent political dissidents from leaving the country. Similarly, under Vladimir Putin, Russia has employed border control measures to prevent opposition figures and journalists from leaving the country. Unchecked surveillance of digital privacy undermines democracy and civil rights. This undermining of free political expression may lead to individuals self-censoring to avoid anticipated negative legal consequences —a “chilling effect” seen in past authoritarian regimes. 

The Fourth Amendment guarantees protection against “unreasonable searches and seizures” by the government, yet at U.S. borders, this right is significantly limited. Within 100 miles of the border, any search can be deemed “reasonable,” due to the “100 Mile Border Zone,” creating a blurred line in legal protections. Within this zone, federal agents are granted expanded powers that allow for stops and searches without the usual requirements of probable cause or a warrant. The lack of clear limitations on digital searches within the border zone has created a gray area in which privacy rights are inconsistently protected and often overridden in the name of national security. This legal loophole raises pressing concerns about surveillance, racial profiling, and the erosion of civil liberties in areas far beyond the immediate border.

While officers do have the authority to seize and search electronic devices, it is crucial to understand your rights as a traveler. You might consider these general tips when traveling internationally:

• Consider traveling without electronic devices that may contain sensitive information.
• Make sure someone has your flight details and other information in case you are held in secondary screening.
• If subject to a search, 
  • Ask for the search to be done by a person of the same sex/gender
  • Ask airport officials to search your belongings in front of you.
• CBP may question you about your religious beliefs, political activities, personal relationships, or the people you associate with — but you are not required to respond to these questions.
• It is common procedure for CBP to ask questions you about your trip (its purpose, length, locations), your identity (ie. name, date of birth, citizenship status), and how much money you are carrying (you must declare if it’s over US$10,000), and you should answer honestly. 
• Do not sign anything you do not understand or have not been able to read.
• If you are held in secondary screening in an international airport for a prolonged time, you can ask to call a relative, friend, or attorney.
• To access records related to your interactions with Border Patrol, you can submit a Freedom of Information Act (FOIA) and Privacy Act request through the DHS FOIA website.
• To report abuses specifically by Customs and Border Protection (CBP), you can file a complaint via the CBP INFO Center at help.cbp.gov. 

If you are a U.S. citizen:

• U.S. citizens have a constitutional right to refuse to unlock their phones or provide passwords when asked by border agents, as protected under the Fourth and Fifth Amendments. However, it’s important to understand that exercising this right may lead to consequences such as temporary detention, extended questioning, or the seizure of your device for further inspection. 
• If your device is taken, ask for a custody receipt to document its confiscation, as it may be held for further inspection or analysis. 
• If detained, ask to speak to a lawyer. Organizations like the ACLU and the Electronic Frontier Foundation (EFF) offer further legal guidance on border searches.

If you are a noncitizen:

• Foreign nationals have the right to refuse to unlock their devices, but doing so may lead to detention or even deportation. For this reason, it is essential for all travelers, regardless of nationality, to take proactive steps to protect their digital privacy when crossing borders.
• Refusing to answer certain questions or provide access to your device may have different implications if you are not a U.S. citizen, especially if you are on a non-immigrant visa.
• If you have an immigration case or any concerns about traveling, speak to a trusted lawyer before traveling. You can consult with certain non-profit organizations that offer free legal services.

As the expansion of digital surveillance at borders continues to raise concerns, travelers must be aware of their rights and understand the legal implications of having their devices searched. While border agents have broad authority to inspect electronic devices, the rights of both U.S. citizens and foreign nationals are not without limitations. By knowing what to expect and how to respond, individuals can better protect their privacy and avoid unwanted consequences. 

However, this issue extends beyond individual actions—there must be a strong commitment from our leaders to ensure that digital surveillance practices do not disproportionately target individuals based on racial profiling or political beliefs. It is crucial to recognize and share the stories of those affected by these invasive tactics, as personal accounts can challenge the normalization of such practices and highlight their human cost. By raising awareness and advocating for ethical standards in surveillance, we can help create a culture that prioritizes fairness, transparency, and respect for individual rights in the digital age.