Can the US Government really search your phone on the border? And is this really something that started with Trump—or has it been happening all along?

This week on Immigration Weekly, Rosanna Berardi breaks down the laws that allow border officers to search your personal devices, including the long-standing border search exception to the Fourth Amendment.

She explains how U.S. immigration law is built on a system of sponsorship and why the Constitution applies to everyone on U.S. soil—citizen or not. From cloud backups to social media handles on visa applications, this episode gives you the real deal on what the government can and can’t do at the border. Tune in and get the facts from a former immigration officer who’s been on the inside.

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Transcript

Welcome to Immigration Weekly with Rosanna Berardi. Well, this is going to be a good episode. So, so much talk about searching of cell phones, what’s going on at the border.

Can the government really look at Facebook? Can they look at my post that I wrote a few years ago on Instagram?

How does this all work? Guess what? Short answer.

The answer is yes, they can. And today I’m going to break down why and how. So let’s back up a little bit.

US Immigration and Nationality Act

What are we talking about here? So, to give you the proper context and framework, we’re talking about the U.S. Immigration and Nationality Act. That’s the law that governs United States immigration.

It was enacted in 1952. That’s the core foundational law that we’re really working from. And it’s been amended a bunch of times, 1965, 1986, 1990, most recently 1996.

That was the last revision of the U.S. Immigration and Nationality Act. It was called the Illegal Immigration Reform and Immigrant Responsibility Act, IRA, IRA. I was in law school when this bad boy was actually revised.

So the Immigration and Nationality Act, it’s the law. The code of federal regulations are the rules that apply the law. No, this is not a law school lecture, but I want to give you some context.

And where does this all fit and how does it work regarding citizens, non-citizens? Well, just remember the foundation of U.S. Immigration Law is this Immigration and Nationality Act. It establishes the basic foundation.

We are a system of sponsorship. This means if you live in Greece and you want to come to the United States, you can’t just pack your bag and go. You have to be sponsored.

By who? Well, it can either be a family member. It could be your mother, your father, spouse, fiancee.

It can also be by an employer. An employer can say, you know, we really need him here, and we can’t find anyone else to do so. So we are a system of sponsorship-based, very different from other countries.

People always compare Canada and Australia, where you get points, and you qualify, and you can self-petition. And those points are based on things like language and familial relationships and things of that nature. U.S. Immigration, sponsor-based. You can’t just come here. Also, the law has built in some numerical restrictions. What does that mean?

Sponsorship-Based Immigration

That’s a cap on the number of non-Americans that the U.S. Immigration Law will allow into the United States. Guess what? The demand usually exceeds the supply.

Why? Well, despite what you may think of our beloved United States of America, there’s one thing that cannot be disputed. We are a huge country with a huge capitalistic market.

People love to come to the United States. It may not be perfect, but it’s a place where people can live and work and really fulfill their American dreams. So the U.S. Immigration and Nationality Act calls for the way that we bring people into the United States through sponsor-based systems. It also establishes if you’re here and something bad happens, you’ve been arrested, convicted of a crime, you can be removed. If you’ve been arrested or convicted of a crime and you try to come in, you might be deemed inadmissible. If you’re here and you hold a green card for a long time, you can become a citizen.

So it’s our entire structure of the Immigration Law and how we allow people in and out of the United States. So there’s your Immigration Law Lesson 101. Sponsorship-based.

There’s categories for coming in. There’s rules for coming in. There’s rules for getting kicked out.

There’s rules for staying for a long time. Now, where does this border search and seizure come into play? Super, super interesting.

The United States Constitution, remember that when you were in fifth grade and you learned about government? United States Constitution protects all people against the unreasonable search and seizure of home, property, usually requires probable cause, a warrant. Now, people will say to me all the time, if you’re not an American citizen, that doesn’t apply to you.

Well, guess what? That’s mostly incorrect. If you are a foreign national, born somewhere outside of the United States, but you’re in the United States, the majority of the U.S. Constitution applies to you. Those protections apply to you. Fourth Amendment, First Amendment, freedom of speech, most of the Constitution applies to you. It doesn’t say if you’re a U.S. citizen. The only things that actually say that are reserved for U.S. citizens are the big ones, the right to vote, the right to run for federal office, certain government jobs. You’ve got to be a U.S. citizen to qualify. But in general, the U.S. Constitution applies. So all of you out there that say, First Amendment or Fourth Amendment doesn’t apply to someone who’s illegally in the United States, you are wrong. Wrong. That U.S. Constitution, when in doubt, applies. It doesn’t matter if you’re an H-1B worker, if you’re a green card holder, if you run the border illegally, if you’re a fiancé, you’re physically present in the United States. The Constitution applies to you, but for the provisions that pertain to voting, running for public office, and government jobs. Okay.

Why does that matter? Well, the ability to search and seize documents looks like it’s strictly prohibited under the Fourth Amendment. If you looked at the Constitution, you’d say, well, government can’t do this.

I’m not giving them my phone. Well, guess what? There’s something called the border search exception.

Lower Expectation of Privacy at the Border

And that means what it says. Basically, the exception means that the government can do whatever the heck they want when it comes to people coming in and out of the United States. There’s a lower expectation of privacy when you’re coming in and out of the U.S. Guess why? To secure and protect our borders. This is not anything new. This is not a Trump rule.

This is not something born in the last 10 years. This has been around for a very long time. The border search exception allows Customs and Border Protection to search and seize anything they want.

Now, remember, I’m a former immigration officer. Back in the 1990s, 1993 to 1998, I hung out at the border a lot. I had a gun.

I had a badge. When we were inspecting people for admission to the United States, for example, Greyhound bus would come across the Peace Bridge a lot on the weekends. Saturdays, picking up people in Toronto, they had to all be inspected.

We would search their luggage, oftentimes for vehicles. Coming across that border, we’d search their cars. We can look in their purses, their checkbooks.

Now, in the 90s, people weren’t carrying their cell phones everywhere, but essentially, they were carrying their planners. Some had what were those things called? The Blackberries.

I’m dating myself here, but not everybody walked around with their cell phones like we do today. But that being said, we were still searching things. The government, infamous.

If you live in a border city, how many stories have you heard about, oh my God, I got my car searched by the government. They tore up the back seats. They didn’t even put it back together.

They didn’t even tell me why. This has been going on since the sands of time. The government has the ability to look at your phone, look at anything in your possession, look at your luggage, look at the trunk of your car, anything in your pockets.

It does not have to be plain sight. They can say, do you have a phone? If you say no and they search you and find it, they’re going to pull that out and they’re going to take a look.

So what can they search? They can search basically anything they want, phones, laptops. They can do a basic search, which is just like scrolling through an advanced search.

There’s really no warrant required. And there’s been some case law on this back and forth, back and forth. But really, most case law has said you got to do this.

It’s really important for the U.S. government to know who’s coming in and out. And that aspect of searching is critical. So let’s go back to it.

There’s two types of searches. There’s the basic one where the government says, “Hey, give me your password.” Do you have to give it to them?

I would recommend yes. If no, they could seize this bad boy. They can hold it for a really long time.

But let’s just say you comply, give them your password, and they scroll. That’s just a basic, you know, they can look at your social media. Now remember, most of us, when we log into our phones, you could see everything, right?

Like Facebook doesn’t have a special code access, so they can scroll through it. Now, if they want to copy anything from your phone, they really have to get special permission to do that. So, best practice, if you’re entering the United States, and you’re carrying your phone, just remember they can look at it.

They could seize it if they want to. Now here’s something interesting. We all back up most of our phones and pictures and stuff on the cloud.

Can the government get access to the cloud? In 2018, there was a directive that specifically covered this issue, and it said basically only information that’s physically present on the device is supposed to be subject to search. If you back up everything to the cloud and you delete all your apps in your email and the only thing on here are your calendar or a few pictures or whatever, and the government says give me your Apple ID to access the cloud, they’re not really able to do that.

It’s a policy limitation and a restriction. So remember, if things are backed up onto the cloud, they are not able to look at that. So anything that is live and well and present in your phone is definitely game.

How about social media? People don’t like this one, but fun fact, since 2019, which was many moons ago, the U.S. government and Department of State has required every visa applicant that applies for a visa to come to the United States to provide their social media handles and identifiers for the last five years. This really isn’t anything new.

People don’t like it. They don’t want the government to look at what they post on X or Facebook or TikTok, but it’s out there. And remember, all of these things that are living, breathing, there’s really no expectation of privacy.

If you’re posting stuff on Facebook that’s inflammatory or trashing your ex-husband or whatever, that expectation of privacy isn’t going to really get you too far. People can see it. Government’s going to be able to scroll through it.

They can look at your social media apps. They can see what’s there. And if they want to, if it’s egregious enough, they can prevent your entry from the United States.

How it Really Works

So let’s do a couple of law school fact patterns here. Okay. I’m at the border.

I have my phone. What can they look at? Well, it depends on who you are.

So I’m a U.S. citizen. I was born in the great state of New York, United States of America. I am coming back to the United States.

I went shopping up in Toronto. I get pulled into secondary inspection because I’ve declared that I bought $5,000 worth of luxury purse bags for my fundraiser, and I need to pay duty because that’s what upstanding people do. And while I’m there, the officer says, “Hey, Rosanna, let me see your phone.”

What? I’m a U.S. citizen. Don’t look at my phone.

No. Technically, I can refuse. What will happen?

I will likely sit in secondary inspection for quite some time. They might take my phone. They can’t deny me entry.

I’m a U.S. citizen. The U.S. passport, fun fact, the passport gives you the ability to re-enter your own country. So the government cannot refuse me.

I’m a U.S. citizen. This is my turf. This is where I was born.

But they can take my phone, and they may not give it back for several weeks. When in doubt, give them your phone.

What if I’m a green card holder?

What if I was born in Italy like my father was, and my spouse petitioned for me like my mother did for my father? I have a green card holder. That gives you permanent resident status.

You’re here in the U.S. permanently. You cannot vote, but you can do mostly everything else. Same thing.

I’m coming back into the U.S. I get pulled in. I’ve got my green card. Government says, “Let me see your phone.”

“Here you go” is really the good answer for green card holders. Similar rights. They can refuse you if they absolutely had to.

If you refuse to give them your phone, they could make your life miserable for a really long time. So let’s just say I’m Rosanna from Panama and I flew into Toronto and I’m going to come down to Buffalo because I’ve heard about these Buffalo Bills and chicken wings and it’s a weekend and show up at the border with my passport and I say, “I’m going to the Buffalo Bills game,” and they talk to me. Something comes up in their system.

They pull me in and they say, “Can we see your phone?” And I say, “Absolutely not.” They’re going to say, “Give me your phone now, pal,” because as a visitor coming into the United States, they can fully do that.

You have no constitutional protections. Remember the border search exception. When you’re a visitor, if you say no, they can deny me entry.

They can say, “Go back to Toronto or go back to Panama.” They could also seize your phone. When in doubt, cooperate.

Best advice, US border, no matter where you are, general good advice when you deal with law enforcement authorities, cooperate, make it easy for them. If you’re not comfortable with what’s on your phone, that’s on you. There’s many ways to delete stuff.

There’s many ways to leave it at home, but just know this phone is an extension of who you are, just like your purse, your luggage, the trunk in your car, your vehicle in general. Remember the takeaway, US Immigration and Nationality Act 1952 is when this all started. Hasn’t been amended since 1996.

We’re a system of sponsorship. You can’t just come here. It is a privilege.

You need to be invited, sponsored. This is the backbone of our immigration system.

How does the Constitution work? The Constitution applies to everybody regardless of status, but for the narrow exceptions of voting and holding public office. Crossing the border, can they touch your phone, your laptop, your luggage? Absolutely.

Best practice, cooperate. It’s not that complicated. Please know, don’t go to your friends and say, “Oh, under Trump, they’re looking at phones.”

I’m not pro-Trump. I’m not anti-Trump. I’m here to educate you.

This has been the cornerstone and the foundation of the US immigration law for decades. Don’t go out there and say that. I worked at the border in the 90s and was doing this.

This is not new. What’s new? The media is talking about it.

This is Immigration Weekly with Rosanna Berardi. We’ll see you next time.

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