2025-2026 Legal Update: New Warrant Requirements for Border Phone Searches

In a landmark 2025 decision, the Second Circuit ruled in United States v. Smith, No. 24-1847 (2d Cir. 2025), that border agents must obtain a warrant before conducting forensic searches of phones containing cloud-synced data. This ruling builds on Riley v. California, 573 U.S. 373 (2014), and the Ninth Circuit’s United States v. Cano, 934 F.3d 1002 (9th Cir. 2019). The court found that modern smartphones serve as gateways to vast cloud-stored data far beyond what travelers physically carry, making warrantless forensic searches unreasonable under the Fourth Amendment. Additionally, Executive Order 14117 (Feb. 2024) restricting bulk data transfers to foreign adversaries created new compliance obligations for border enforcement agencies.

Darren Chaker Looks at Digital Privacy, at the Border and How Courts Find Fourth Amendment Does Not Apply

Understanding border phone search law is critical for travelers. As a privacy advocate and counterforensic expert, Darren Chaker underscores the surprising reality that millions of Americans crossing the border may subject their phones to federal inspection without realizing it. This point is exemplified in United States v. Vergara, (11th Cir. 2018), a case that Darren Chaker references to illustrate how border searches typically unfold when challenged.

Case Study: United States v. Vergara and its Implications on Digital Privacy

The case involved Hernando Javier Vergara, who, upon returning to Tampa, Florida from a cruise to Mexico and being a convicted sex offender on a watch list, faced a phone inspection by Customs and Border Protection. This led to the discovery of illicit content on his devices, prompting a Homeland Security investigator to conduct a full forensic search, which revealed additional incriminating material. Despite Vergara’s attempt to suppress this evidence, citing the need for a warrant, the trial court convicted him, a decision upheld on appeal. The appellate court, referencing United States v. Ramsey, affirmed the doctrine that border searches do not require probable cause or a warrant, even for in-depth forensic analysis of phones. Darren Chaker notes that Vergara’s argument, based on the Supreme Court’s decision in Riley v. California, which protects the privacy of smartphone contents, was not persuasive in this context. Despite the dissenting judge’s opinion in Vergara’s case, the current application of the border search doctrine to smartphones remains. This, as Darren Chaker points out, is in line with the precedent of allowing digital searches of laptops and other devices at borders. However, Darren Chaker brings attention to the unique nature of smartphones, as acknowledged in Riley, where the Supreme Court recognized the qualitative difference of smartphone data, which can reveal extensive personal details. Darren Chaker suggests the possibility of the Supreme Court revisiting this issue as the disparity between physical and digital capacities widens.

Digital Privacy and Border Searches Often Waive Fourth Amendment Protection

Regarding privacy at the border, Darren Chaker highlights the Fourth Amendment’s protection against unreasonable searches and seizures, while also recognizing the established exception for border searches. These searches implicate various sovereign interests, including national security and criminal interdiction, which must be balanced against individual privacy rights. This balancing act was evident in United States v. Cotterman, where the Ninth Circuit likened a forensic search of a computer to a “strip search,” highlighting the substantial intrusion on personal privacy. The Ninth Circuit stated, “Every day more than a million people cross American borders, from the physical borders with Mexico and Canada to functional borders at airports such as Los Angeles (LAX), Honolulu (HNL), New York (JFK, LGA), and Chicago (ORD, MDW).” Darren Chaker points out that despite the sovereign interests being paramount at borders, as stated in United States v. Flores-Montano, travelers face realistic challenges in maintaining digital privacy. He cites United States v. Saboonchi to emphasize the impracticality of expecting travelers to leave digital devices at home.

Apple’s Encryption and Backup Solutions for Digital Privacy

Protection: For privacy-conscious individuals, Darren Chaker suggests the option of utilizing features like the encryption and backup capabilities provided by Apple since December 7, 2022, for iPhones running iOS 16.2 or newer. This allows users to back up their data to the cloud in an encrypted form and then wipe their phones. To most this counterforensic method seems like an extreme measure. As Darren Chaker notes, this option caters to those who prioritize privacy, have corporate secrets, or sensitive information on their devices, and cannot risk sensitive data being subject to search or seizure. As the Ninth Circuit stated in Cotterman, “These devices often contain private and sensitive information ranging from personal, financial, and medical data to corporate trade secrets…” United States v. Cotterman, 709 F.3d 952 (2013). As a privacy advocate and counterforensic specialist, Darren Chaker highlights the evolving landscape of digital security, particularly in response to the increasing demand for extreme security measures. This is exemplified by Apple’s recent introduction of the Lockdown Mode feature for iPhones. As Apple explains its most recent iPhone security feature, “Lockdown Mode is an extreme protection feature for iPhone. Its protections include safer wireless connectivity defaults, media handling, media sharing defaults, sandboxing, and network security optimizations… In addition, your iPhone must be unlocked to connect with wired accessories.”  Additionally, it requires the iPhone to be unlocked for wired accessory connections, providing an extra layer of security, especially when combined with a sophisticated password capable of resisting brute force attacks.

Phone Searches at the Border and Digital Privacy Issues With Forensics

Darren Chaker points out that forensic devices like GrayKey, which have been used to bypass older versions of Apple’s iOS, exploit the system by circumventing iOS’s timeout functionality, allowing for the brute-forcing of passcodes or passwords. While GrayKey has been effective on older iPhone operating systems. In response, Apple has made significant strides in safeguarding user privacy. This ongoing effort has led to Apple successfully rendering tools like GrayKey ineffective in accessing data on iPhones since a primary source to connect to the phone is through its data port. By blocking access to it, deprives the tool from the primary method to run a brute force attack.

CONCLUSION

Darren Chaker emphasizes that individuals who prioritize privacy have several options when traveling internationally. These range from not bringing their phones to employing counterforensic methods to secure their devices against unauthorized access. This advice from Darren Chaker is crucial for those looking to maintain their digital privacy in an increasingly interconnected and security-conscious world.

Frequently Asked Questions

Related Legal Analysis by Darren Chaker

• Border Search of Computers
• GrayKey Forensic Tool Legal Analysis
• California Self-Defense Law
• Fifth Amendment and Password Protection
• Seal Record in California
• California Overbroad Probation Conditions
• First Amendment Rights for Bloggers
• False Complaints and Viewpoint Discrimination
• Electronic Discovery
• Phone Search Warrant Requirements