Is it legal to use a burner phone to cross US borders?

USA Today

2 days ago

A burner phone might be one way to avoid having your personal data scrutinized when crossing U.S. borders, even if you're not hiding anything.
Travelers are reportedly facing higher rates of inspections when attempting to enter the country as U.S. Customs and Border Protection agents follow directives to bolster national security. Any traveler – whether a citizen or visitor – can be subject to an inspection, which is meant to verify their identity and assess any risk of crime or contraband, according to the agency.
During the more common basic search, agents are legally allowed to search information stored directly on electronic devices, including photos and deleted folders, without a warrant. For those applying for a visa, social media profiles have to be made public in order to be examined by the Department of Homeland Security. CBP Assistant Commissioner Hilton Beckham previously told USA TODAY, the agency "follows strict policies and directives when it comes to searching electronic media."
However, more reports of detainments and deportations during what legal experts are calling a period of "more aggressive" enforcement and questioning at the border are worrying some travelers, who fear that certain content on their phone could get them in trouble. In April, several major Canadian institutions advised their staff to only take a burner phone if they need to travel to the U.S.
CBP did not respond to USA TODAY's request for comment.
Travelers, even U.S. citizens, are facing newfound fears over more thorough vetting at borders, along with what some legal experts call "a chilling effect" on our freedom of expression. To limit what can be looked at during border searches, they may be considering packing a burner phone with them instead of their regular one.
Under this idea, travelers would leave their primary phone at home and bring a secondary phone with minimal personal information stored on it instead. This device would be exclusively "a travel phone, and has very limited functionality," said Esha Bhandari, deputy director of the American Civil Liberties Union Speech, Privacy, and Technology Project. She added, "We've heard anecdotally that some travelers may be wanting to do that more."
Here's what people should know about traveling with a burner phone.
Is it illegal to travel with a burner phone?
No, it's not illegal to use a travel phone, even if it seems suspicious to have a nearly empty phone. "At the outset, there's no legal barrier to traveling with certain digital information," Bhandari said. Basically, this means your phone doesn't have to contain all your information to enter the country.
In fact, one of the government's legal defenses asserting these searches aren't an invasion of privacy is that travelers can control what they have on their devices, according to Bhandari. Some courts have had sidebar discussions that it's akin to having the contents of your luggage searched. "So the government itself acknowledges that if travelers can control what they bring, then that must mean that you can travel without a device that has your everyday things on it, right?" she said. Legal organizations like the ACLU and Electronic Frontier Foundation have argued that our devices store much more information than that, making these searches more intrusive.
Should I travel with a burner phone?
Each traveler needs to make their own risk assessment to determine whether it's beneficial to travel with a secondary device, according to Bhandari. Some people who carry sensitive work or personal information on their phone may find it worthwhile, while others who already have a separate work phone can leave one at home, she continued. "For other travelers, having a separate device may not be feasible, but they can still choose what data to physically retain on their device before they travel."
Keep in mind that your rights at the border can vary depending on your immigration status, so the outcome could vary. So while U.S. citizens and legal residents must still be allowed into the country, visitors and non-visa holders could be turned away. "No traveler is obligated to have all their personal information on them," Bhandari said. "But I think, unfortunately, in the current environment, travelers do have to be aware of that risk."
Despite your immigration status, if you refuse to have your phone searched, agents have the authority to confiscate it for weeks or even months.
Other tips for privacy at US borders
If you're still on the fence about traveling with a burner phone, here's what Bhandari recommends during border searches: