Mobile Scanning: Is Your Airport Equipped?

The Transportation Security Administration (TSA) has implemented security measures at airports that require travellers to turn on their phones and other electronic devices upon request. This is to ensure that the devices are not disguised explosives. While the TSA does not conduct data searches on these devices, they may confiscate them and download data without a warrant. The US Customs and Border Protection (CBP) has broader authority and can search mobile phones without a warrant, including those of non-US citizens. Travellers concerned about data privacy may choose to carry a burner phone or back up and wipe their primary phone before travelling. Digital IDs and mobile driver's licenses are also accepted at select TSA checkpoints for identity verification, but physical IDs are still required as backup.

TSA's right to search your phone

The Transportation Security Administration (TSA) is not a law enforcement agency and primarily focuses on physical threats. They are not legally allowed to search the contents of your phone or other electronic devices. However, they may ask you to power on your device to ensure that it is functioning and not used for any illegal purposes. They may also swab your phone to check for traces of explosives. If a TSA agent asks to search your phone, you can politely ask for clarification and refuse their request without facing any consequences. However, they may involve law enforcement if they believe further investigation is required.

Customs and Border Protection (CBP) officers, on the other hand, do have the right to search your phone and other electronic devices, including the content of your phone, computer applications, and social media accounts. These searches can be basic, where officers examine the device without additional equipment, or advanced, where devices are connected to external equipment to access, copy, and analyze their contents. CBP searches are rare, with less than 0.01% of international travellers encountering them in 2024. However, CBP searches have resulted in evidence related to terrorist activity, child pornography, drug smuggling, human trafficking, and other illegal activities.

If you are a US citizen, you cannot be denied entry into the country for refusing to unlock your phone for CBP. However, your device may be confiscated and searched, and your entry may be delayed. Non-US citizens, including visa holders and tourists from visa waiver countries, may face denial of entry if they refuse to provide their passwords or unlock their devices. It is important to know your rights and understand that officers cannot select you for a personal search based on your religion, race, national origin, gender, ethnicity, or political beliefs.

To protect your privacy, you can take precautions such as backing up your data, turning off biometrics, and using travel-specific devices with minimal personal information. Additionally, staying updated on your rights regarding electronic device searches is crucial, as legal requirements and regulations can change.

CBP's right to search your phone

U.S. Customs and Border Protection (CBP) officers are authorized to search the electronic devices of any international traveler entering or leaving the United States. This includes mobile phones, laptops, cameras, and other electronic devices. While these searches are rare, occurring in less than 0.01% of cases in 2024, they can be highly intrusive, involving a full forensic examination of the device.

Your Rights

As a traveler, you have the right to refuse to unlock your device or provide your password during a search. However, CBP officers may still confiscate your device and attempt to unlock it using forensic tools. They may retain your device for up to 15 days, or longer if it is part of an active investigation. While U.S. citizens cannot be denied entry to the country for refusing a search, foreign nationals may be denied admission and/or subject to law enforcement actions.

Protecting Your Data

To protect your data, it is important to be mindful of the content on your device before traveling. You can use encryption tools to secure sensitive information and delete specific texts, apps, photos, or other data that you would not want a government agent to see. It is also crucial to understand your rights and the potential ramifications of refusing a search, which may include device confiscation.

Legal Landscape

The legal landscape surrounding CBP's authority to search electronic devices is complex and evolving. Some courts have held that while travelers cannot be compelled to disclose their passwords verbally, they may be required to provide a fingerprint to unlock their devices. Additionally, there are varying requirements for "forensic" searches across different jurisdictions, with some courts requiring reasonable suspicion of a violation, while others impose no limits.

In conclusion, while CBP has the right to search your phone and other electronic devices at U.S. borders, including airports, travelers also have rights and can take steps to protect their data and privacy. Understanding these rights and preparing in advance can help travelers make informed decisions and minimize risks when encountering CBP searches.

Protecting your data

It is important to be aware of your digital rights at the airport. While the Transportation Security Administration (TSA) does not typically search your phone, they may ask you to turn it on or power it on to ensure that it is a working device and not a disguised bomb. They may also want to inspect it if the device looks suspicious when it goes through the baggage scanner. However, if you are travelling internationally, the U.S. Customs and Border Protection (CBP) has the authority to search your phone without a warrant, including texts, photos, browsing history, social media, and financial information. This practice is not limited to airports but extends to any border crossing.

• Stay updated on your rights regarding electronic device searches. Legal requirements and regulations can change, so it is important to follow reputable sources for any new developments in TSA and CBP policies.
• If a TSA agent asks to access the data on your device, politely ask for clarification before raising any concerns or denying their request. Misunderstandings can quickly escalate, and non-cooperation may lead to denial of boarding or legal trouble.
• If you have sensitive data on your device, consider moving it to a cloud storage provider and then wiping or factory resetting your device. This will protect your data from a basic visual search, but be aware that forensic searches may still uncover traces of deleted files. Additionally, walking through customs with a blank device could aroue suspicion.
• Store sensitive data in a private, hidden, or password-protected folder.
• If possible, choose to fly into a state with more stringent boundaries for CBP searches. Different states have different laws governing what CBP can inspect at U.S. entry points.
• If you believe your rights have been violated during the screening process, you can file a complaint with the TSA by speaking to a supervisor at the airport or by reporting your concerns on the TSA website.

Digital IDs and mobile driver's licenses

In today's world, where smartphones have become an indispensable part of our lives, the concept of digital IDs and mobile driver's licenses is gaining traction. The convenience of having your essential documents easily accessible on your phone is undeniable, and many countries and states are exploring the implementation of digital driver's licenses (DDL) or mobile driver's licenses (mDL).

A DDL is not merely a digital copy or screenshot of your physical driver's license. Instead, it is a means to verify your identity digitally through an app or your smartphone. By partnering with state governments, the technology ensures that your identity is securely validated. It is important to note that a DDL serves as a supplement to your physical license or ID rather than a replacement. In the United States, the Department of Homeland Security (DHS) is actively working to establish standards for mDLs, aiming for federal agencies to accept them as REAL ID-compliant identification. The DHS is committed to ensuring that the stringent identity verification requirements mandated by the REAL ID Act are upheld, even as DDLs gain popularity.

Several states in the US have already embarked on the journey towards digital driver's licenses. Arizona, Delaware, Mississippi, Oklahoma, and Utah have introduced their own apps or partnered with companies like Idemia to offer DDLs. Colorado's myColorado app, Louisiana's LA Wallet app, and Maryland's Maryland Mobile ID are notable examples of state-sponsored DDL initiatives. These apps not only provide proof of identification but also include additional features such as age and address verification.

Internationally, countries like Finland, Kosovo, Argentina, Thailand, Norway, South Korea, and Denmark have embraced the concept of DDLs, with successful tests and rollouts. The United Kingdom, through its Driver and Vehicle Licensing Agency (DVLA), is also exploring the development of a digital driving license for smartphones.

As DDLs and mDLs continue to evolve and gain wider acceptance, it is essential to stay informed about the latest developments and standards. While the convenience of having your driver's license on your phone is appealing, understanding your digital rights and the potential privacy implications, especially at airports and border crossings, is crucial. The Transportation Security Administration (TSA) has implemented enhanced security measures, including the requirement to turn on electronic devices for inspection, to address security concerns. Therefore, staying updated on the policies of the TSA and Customs and Border Protection (CBP) is vital to protect your rights and ensure a smooth travel experience.

What to do if you believe your rights have been violated

Many countries have implemented security measures that require passengers to turn on their mobile phones at airport security. This is to prove to security screeners that the phone is a working device and that its batteries are not hidden explosives.

If you believe your rights have been violated during the screening process, you can take the following steps:

• File a complaint with the TSA: You can ask to speak to a supervisor while at the airport or go to the TSA website to report any concerns or issues. It is important to stay updated on your rights regarding electronic device searches, as legal requirements and regulations can change.
• Contact an attorney or legal services organization: If you feel your rights are being violated, you can ask to contact an attorney or legal services organization. It is recommended to have their telephone number with you when travelling.
• Refuse to answer questions about your religious or political beliefs: Officers may not select you for questioning based on your religion, race, national origin, gender, ethnicity, or political beliefs. Religious and political beliefs and associations are protected by the First Amendment. You do not have to answer questions about these topics, and you have the right to remain silent.
• Assert your right to wear a religious head covering: If asked to remove your religious head covering before going through airport security screening, you have the right to assert your right to wear it. If an alarm goes off, airport security officers may request additional screening, but you can refuse to let them touch your head covering and instead pat it down yourself under supervision.
• Contact the ACLU (American Civil Liberties Union): If you believe your rights have been violated at an airport or land Port of Entry in California, you can contact the ACLU Foundations of California. They provide specific contact information for different airports and ports of entry.
• File a civil rights complaint: You can file a civil rights complaint with the Department of Homeland Security if you believe your rights have been violated.

Frequently asked questions