Border Device Searches: Fourth Amendment Gap at U.S. Ports of Entry

CBP officers at ports of entry can search your phone or laptop without a warrant based on the border-search exception to the Fourth Amendment. No federal appellate court has required a probable-cause warrant for these searches. In Alasaad v. Mayorkas (1st Circuit, 2021), the court held that 'basic' manual searches require no suspicion and that even 'non-routine' forensic searches only require reasonable suspicion—not a warrant. The 9th Circuit in U.S. v. Kolsuz (2016) also applied a reasonable suspicion standard for forensic searches, explicitly noting that 'no court has required more than reasonable suspicion to justify even an intrusive border search.' This leaves a gap that only legislation can fill: courts have repeatedly declined to mandate a warrant in the border context, and the Supreme Court has not directly ruled on the issue.

The Protecting Data at the Border Act—introduced in the 119th Congress as H.R. 2604—would change that. It requires a judicial warrant based on probable cause before border agents can search the digital contents of any electronic device, mirroring the Supreme Court's reasoning in Riley v. California that digital data is fundamentally different from physical containers. The bill has not passed. CBP data shows over 40,000 warrantless device searches in FY 2023 and over 50,000 in FY 2024. While the administration has not expanded CBP's search authority as of this writing, the absence of a warrant requirement leaves communities of color, journalists, and activists—who face disproportionate scrutiny at ports of entry—without full constitutional protection. Advocacy groups such as the ACLU and the Knight First Amendment Institute continue to litigate these issues, arguing that the Fourth Amendment should apply with full force to digital devices at the border.