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This post was updated on January 9, 2018.

We鈥檝e been getting a lot of questions about when border agents can legally conduct searches of travelers鈥� electronic devices at international airports and other ports of entry. Unfortunately, the answer isn鈥檛 simple.

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The government has long claimed that Fourth Amendment protections prohibiting warrantless searches don鈥檛 apply at the border. The ACLU takes issue with this position generally, especially when it comes to electronic devices like smartphones and laptops. Our smartphones store detailed accounts of our conversations, professional lives, whereabouts, and web-browsing habits. They paint a far more detailed picture of our private lives than, say, a piece of luggage.

The Supreme Court recognized this reality when it in 2014 that the Constitution requires the police to obtain a warrant to search the smartphone of someone under arrest. As the ACLU has argued in various court filings, there鈥檚 no reason the Constitution鈥檚 safeguards against unwarranted searches shouldn鈥檛 also apply when we travel internationally given the ubiquity of these devices, and their ever-growing capacity to track the minutiae of our private lives.

Unfortunately, the government doesn鈥檛 agree, and the law on the matter is far from settled. Because of the high-stakes implications of these kinds of searches, and amidst suggesting they鈥檙e on the rise, it鈥檚 important to understand the landscape so that you can make decisions that are right for you ahead of your travels.

This resource offers a basic snapshot of possible scenarios relating specifically to electronic device searches. For a fuller picture of the many other civil liberties issues that often arise at the border, click here. And if you think your constitutional rights have been violated, tell us what happened by .

What happens if border agents demand I turn over my device?

The government claims the authority to search all electronic devices at the border, no matter your legal status in the country or whether they have any reason to suspect that you鈥檝e committed a crime. You can state that you don鈥檛 consent to such a search, but unfortunately this likely won鈥檛 prevent CBP from taking your phone.

If you鈥檝e given Customs and Border Protection agents the password to your device (or if you don鈥檛 have one), they might conduct what鈥檚 often called a 鈥渃ursory search鈥� on the spot. They might also download the full contents of your device and save a copy of your data. According to from 2009, they are not required to return your device before you leave the airport or other port of entry, and they might choose to send it off for a more thorough 鈥渇orensic鈥� search. Barring 鈥渆xtenuating circumstances,鈥� they claim the authority to hold onto your device for five days 鈥� though 鈥渆xtenuating circumstances鈥� is an undefined term in this context, and this period can be extended by seven-day increments. We鈥檝e received reports of phones being held for weeks or even months.

As a result of this policy, even the most universally recognized private information 鈥� like communications with your lawyers 鈥� are insufficiently protected at the border. If you possess information that is protected by attorney-client privilege, you should tell the CBP agent you鈥檙e interacting with. Unfortunately, all he or she will need to do under agency policy is 鈥渟eek advice鈥� from a superior prior to the search.

Journalists carrying sensitive information about their work or sources are also insufficiently protected. The CBP directive states that 鈥渨ork related information carried by journalists shall be handled in accordance with any applicable federal law and CBP policy鈥� 鈥� but it鈥檚 unclear what this means. Journalists who feel their rights have been violated at the border should let us know, and those who have upcoming travel should consult with their organizations鈥� general counsel offices or press associations.

If you leave the airport or other border checkpoint without your device, make sure you get a receipt, which should include information about your device and contact information allowing you to follow up. If, after the forensic search is conducted, there is no probable cause to believe the device contains evidence of a crime, the government says it will destroy any information it copied within 21 days. Yet there鈥檚 a caveat here, too. CBP might retain the notes it took during the search of your device or any questioning while you were at the border.

Do I have to enter a password to unlock my device?

Your legal status in the country may inform what you decide to do if you鈥檙e asked for a password to unlock your device.

If you鈥檙e a citizen, you can鈥檛 be denied entry into the country if you refuse to comply with a request to unlock your device or to provide a password. But you might be detained for longer or have your device seized and not returned to you for weeks or months. The same should be true for those who have previously been admitted to the United States as lawful permanent residents and have maintained their status 鈥� their green cards can鈥檛 be revoked without a hearing before an immigration judge. If you are not a citizen and are concerned about having your devices searched, you should consult with an immigration lawyer about your particular circumstances before traveling.

Visa holders and tourists from visa waiver countries, however, run the risk of being denied entry if they refuse to provide a password, and they should consider that risk before deciding how to proceed. The Department of Homeland Security is presently considering instituting a policy requiring visitors from certain countries to provide social media passwords in order to secure a visa to travel to the U.S. (The ACLU opposes the proposal.)

Whether you鈥檙e a citizen or not, though, we always recommend that you enter the password yourself rather than divulging it to a CBP agent. They still might demand that you share it, but it鈥檚 a precaution worth trying to take. If you do hand over your password, it鈥檚 likely to end up in a government database, so change it as soon as you have the chance and make sure you no longer use that password for any other account.

What can I do to prepare?

Here are a few precautions you can take in preparation for your trip to ensure things go as smoothly as possible:

• Travel with as little data and as few devices as possible. The less you鈥檙e carrying, the less there is to search. Consider using a travel-only smartphone or laptop that doesn鈥檛 contain private or sensitive information. You could also ship your devices to yourself in advance. (Be aware that CBP claims the authority to search international packages so it is best to encrypt any devices that you ship.) Keep in mind that a forensic search of your device will unearth deleted items, metadata, and other files.
• Encrypt devices with and shut them down when crossing the border. A good resource on how to do so can be found .
• Store sensitive data in a secure cloud-storage account. Disable any apps that connect to cloud-based accounts where you store sensitive communications or files, and don鈥檛 keep a copy of cloud-stored data in your physical possession. In July 2017, Customs and Border Protection publicly stated it is against policy for border agents to search cloud-stored data on electronic devices. This means that any search of an electronic device at the border should not extend to data that is only accessible via the internet 鈥� such as email or social media messages and posts that are stored on remote servers.
• Upload sensitive photos on your camera to your password-protected laptop or a cloud-storage account. Digital cameras don鈥檛 offer encrypted storage, so you should consider backing up your photos and deleting them from your camera and reformatting the camera's memory card.
• Turn on airplane mode for all of your electronic devices before crossing a border checkpoint. CBP in July 2017 that its policy does not permit searches of cloud-stored data that is accessible from electronic devices through the internet. Keeping your devices in airplane mode will help ensure compliance with this policy.

• Let officers know if you have privileged material on your device. The on border device searches requires certain procedures to be followed before border officers can search attorney-client or attorney work product materials. If you have any privileged or sensitive material on your device, tell the border officers before they begin any search.

Until the Supreme Court weighs in on the constitutional limits of the government鈥檚 powers at the border, questions about the government鈥檚 authority to conduct these kinds of searches aren鈥檛 likely to be settled. Lower courts have issued conflicting rulings on whether individualized suspicion should be a condition for such a search. The Ninth Circuit, which covers several western states, for example, at least reasonable suspicion for a 鈥渇orensic鈥� search of a seized device, but has not imposed limits on 鈥渃ursory鈥� on-the-spot searches.

It is crucial that more courts weigh in, given that device searches at the border seem to be on the rise. indicate that in 2016, almost 24,000 electronic devices were searched, a huge jump from the nearly 5,000 devices that were searched in 2015. The pace of searches continues to accelerate, with the Department of Homeland Security conducting 5,000 device searches in February 2017 alone.

With border officials increasingly exercising authorities that haven鈥檛 been sufficiently considered by the courts, the urgency for clear protections mounts. In the meantime, travelers should take the precautions they feel are right for them.