Cell Phone Inspections at US Border and Beyond: What to Expect

Key facts:

• U.S. immigration officials monitor public social media data and travelers should be prepared to share details about their personal social media accounts.
• All travelers to the USA may be subject to a search of their electronic devices at the US border.
• Travelers to the USA should pay attention to what they post, like and share on social media and messenger services, even before entering the USA.

The media are increasingly reporting on searches of travelers entering the USA. These not only concern luggage, but also cell phones and other electronic devices.

This is legally possible, even if there is no search warrant. This is because a so-called “border exception” applies to these searches, as the USA has a profound national security interest in protecting its borders that outweighs the privacy interest of an individual person.

Why are cell phones and social media searched?

Why are the immigration authorities targeting the cell phones and, in particular, the social media channels of those entering the country? Social media offers a unique and comprehensive insight into the smallest details of a person. And it’s all stored on a single, pocket-sized device that everyone carries with them all the time.

Upon arrival in the U.S., all travelers must pass through Customs and Border Protection (CBP) passport control. Regardless of citizenship or visa type, CBP may identify travelers who they believe require additional inspection. Travelers may be selected for this additional secondary inspection randomly or for a specific purpose. The secondary inspection takes place in a separate room and can last from a few minutes to several hours. The officers may examine documents more closely, ask further questions about travel plans or examine the contents of cell phones, computers or cameras.

Non-US citizen travelers cannot object to these searches if they want to enter the USA. They must also grant access to their social media accounts and provide the officials with passwords if needed. Refusal may result in denial of entry to the US.

What are the authorities looking for?

In general, CBP looks for evidence that travelers are misrepresenting the purpose of their visit, engaging in criminal activity, or posing a threat to U.S. national security. Even more mundane content, such as posts or messages that disparage the U.S. government, its policy initiatives (foreign and domestic), or current geopolitical issues and events, can cause problems.

The Department of Homeland Security (DHS) now also uses artificial intelligence to search cell phones in order to effortlessly search all publicly accessible social media data for topics of national interest. Such checks can also take place after travelers have crossed the border. Therefore, travelers should pay attention to what they post on the internet and share with their friends throughout the duration of their stay – and even in advance.

Social media best practices for those traveling to the US

Individuals traveling to the U.S. should review their privacy settings on their various social media accounts, including messengers such as WhatsApp and Signal, very carefully. In general, they should refrain from posting, commenting on or engaging with content online that relates to President Trump or his administration, the war in Gaza or any other current event that is known to be controversial or sensitive in the US political landscape.
At all points in the U.S. immigration process – when applying for a visa, during passport control, or while in the U.S. – travelers must provide accurate information about their social media use when asked. False or incomplete information about social media use and usernames may be considered intentional misrepresentation of facts to secure an immigration benefit. This may result in deportation from the US, revocation of the visa or even a travel ban to the US.

To reduce the likelihood of CBP finding a reason to inspect the cell phone, travelers should carry a physical copy of all itineraries, lodging addresses, relevant tickets, brochures, etc. with them during their trip and present the paper documents upon request.

US immigration law does not provide for a right of entry for non-US citizens. The immigration authorities also have a great deal of discretion. They are required by the current US government to interpret the regulations strictly. Therefore, people who want to enter the USA can only comply with all requirements and formalities, be polite and follow instructions.

Co-author: Sarah O’Neill, JD, Attorney-at-Law, Manager at KPMG Law Rechtsanwaltsgesellschaft mbH

Further article on the topic of posting employees to the USA and US immigration: Business Travel and Assignment in the USA: What you need to know about US immigration