EFF: Border Agents Need a Warrant to Search Your Phone

CBP searched 55,318 devices last year. The courts might finally push back.

TL;DR: On March 3, 2026, EFF and ACLU filed an amicus brief in the Third Circuit arguing that CBP needs a warrant to search your phone, laptop, or tablet at the border. In fiscal year 2025, CBP searched 55,318 devices, mostly without any suspicion. No federal appeals court has required warrants yet, but this case could change that. The court will decide if the Fourth Amendment actually means something at the airport.

The Case: U.S. v. Roggio

The facts are almost too convenient for the government. In February 2017, a Pennsylvania man named Roggio returned through JFK Airport from an international trip. He was already under investigation for illegal weapons exports.

Border agents were ready. They'd discussed "border search authority" at a coordination meeting the month before: a clear signal they planned to use the border as a warrantless search opportunity.[1]

They seized his laptop, tablet, phone, and flash drive. Then they ran forensic software that extracted everything: emails, files, messages. No warrant. No probable cause finding. No judge involved.

The search revealed emails documenting an illegal gun parts export scheme to Iraq. Roggio was convicted.

Now the Third Circuit will decide: Was that search constitutional?

EFF's Argument: Riley Changed Everything

In 2014, the Supreme Court decided Riley v. California. The question was simple: Can police search your phone when they arrest you?

The answer was no. Chief Justice Roberts wrote that modern phones contain "the privacies of life": your political views, medical history, dating life, financial records. The search-incident-to-arrest exception doesn't apply.[2]

EFF argues the same logic applies at the border:

  • Your privacy interests in your phone are identical whether you're arrested or crossing a border
  • The government's interest in finding contraband doesn't justify warrantless access to your entire digital life
  • Physical contraband (drugs, weapons) cannot be hidden in digital data
  • Digital "contraband" (child exploitation material) exists on cloud servers anyway, and searching your device doesn't stop it from entering the country

The brief argues that border searches of devices have become "untethered" from their original purpose: stopping physical contraband at the frontier.

55,318 Searches Last Year

In fiscal year 2025, CBP searched 55,318 devices at ports of entry. That's out of 419 million travelers, less than 0.01% of arrivals.[3]

CBP touts that statistic as evidence of restraint. EFF sees it differently: 55,318 people had their entire digital lives exposed without any judicial oversight.

The numbers have climbed steadily:

  • 2015: ~8,500 searches
  • 2024: 46,000+ searches
  • 2025: 55,318 searches

Between April and June 2025 alone, agents searched 14,899 devices, a 16.7% spike compared to the same quarter two years prior.[4]

The trend is clear. Without court intervention, the numbers will keep climbing.

Basic vs. Advanced: Two Levels of Invasion

CBP distinguishes between "basic" (manual) and "advanced" (forensic) searches:

Basic search: An agent scrolls through your phone, looks at photos, reads texts. No special tools.

Advanced search: They connect your device to forensic software that extracts everything: deleted files, app data, location history, passwords. The software generates a detailed report of your activities.

The Ninth Circuit ruled in 2019 (U.S. v. Cano) that advanced searches require "reasonable suspicion."[5] Basic searches? No suspicion needed. An agent can thumb through your phone on a hunch.

EFF says both require warrants. The distinction between scrolling and forensic extraction is meaningless when your phone contains ten years of messages, every photo you've taken, and a map of everywhere you've been.

What's at Stake

No federal appeals court has required warrants for all border device searches. A single district judge in New York ruled that way in May 2023 (U.S. v. Smith), but that decision doesn't bind other courts.[6]

If the Third Circuit agrees with EFF, it would be the first circuit court to fully protect Fourth Amendment rights at the border. That creates a "circuit split" (different rules in different parts of the country) which often pushes the Supreme Court to resolve the question.

If the Third Circuit disagrees, the status quo continues: 55,000+ warrantless searches per year, climbing every quarter.

Protecting Yourself Now

The law may change. It hasn't yet. Here's what you can do:

Travel with a Burner

A cheap phone with minimal data is the safest option. Leave your main device at home.

Log Out and Delete

Before crossing, log out of email, social media, and messaging apps. Delete the apps entirely if possible. You can reinstall after you clear customs.

Cloud Everything

Keep sensitive data in the cloud, not on your device. Turn off automatic syncing before you travel.

Know Your Rights

You can refuse to provide passwords for device searches (though agents may seize the device). You cannot refuse biometric unlock if they compel you. Power off the device before approaching customs to force password entry.

We're Watching

The Third Circuit hasn't scheduled oral arguments yet. When they do, we'll cover it. The court's decision could finally force CBP to get a warrant before rifling through your digital life.

Or it could confirm that the border remains a Constitution-free zone.

Fifty-five thousand people found out which way that goes last year. Every year, the number grows.

References

  1. EFF - Electronic Device Searches at the Border Require a Warrant (March 2026)
  2. Supreme Court - Riley v. California (2014)
  3. CBP - Statistics on Electronic Device Searches
  4. American Bar Association - CBP Device Searches and Attorney-Client Privilege (2026)
  5. Ninth Circuit - U.S. v. Cano (2019)
  6. EFF - Federal Judge Rules Border Searches Require Warrant (2023)