Your Data Is Nonetheless Not Your Own on the Border: The Second Circuit’s Alisigwe Ruling and CBP’s 2026 Device Search Directive 

On September 17, 2026, the U.S. Court of Appeals for the Second Circuit held in United States v. Alisigwe that the federal government wants neither a warrant nor any degree of suspicion to manually search a traveler’s cellphone on the border, and it rejected 4 district courtroom selections inside the circuit that had required a warrant. The ruling follows CBP’s alternative of its 2018 electronic device search policy with Directive 3340-049B, efficient January 1, 2026. Business vacationers, in-house counsel, and corporations whose workers carry shopper, pricing, or technical knowledge by means of ports of entry in New York, Connecticut, and Vermont ought to revisit their journey practices now. 

Key Takeaways 

• The Second Circuit held {that a} handbook search of a cellphone on the border is a routine search that requires no warrant and no suspicion, and that the First Amendment imposes no separate warrant requirement. 
• The courtroom expressly left open whether or not a forensic search, equivalent to an off-site extraction of a telephone’s knowledge, requires affordable suspicion. 
• CBP Directive 3340-049B permits primary searches with or with out suspicion and limits superior (equipment-assisted) searches to circumstances involving affordable suspicion or a nationwide safety concern, with supervisory approval. 
• Under the directive, officers could not deliberately use a tool to entry data saved solely within the cloud, and a tool that can not be inspected attributable to a passcode or encryption could also be detained. 
• Our 2017 article on this matter predates two coverage revisions and this ruling. This article replaces it. 

Border Device Searches After Alisigwe 

What occurred at JFK 

According to the opinion, Chinwendu Alisigwe, a lawful everlasting resident, was stopped at John F. Kennedy International Airport in 2019 by Homeland Security Investigations (HSI) and CBP officers. An officer instructed him to unlock his telephone, scrolled by means of his picture gallery, and photographed photos of different folks’s names, birthdates, and Social Security numbers. Two years later, officers stopped him once more at JFK, manually reviewed his telephone, and photographed a WhatsApp message. The courtroom famous that no extraction of the telephone’s knowledge was carried out. Alisigwe was convicted of conspiracy to commit financial institution fraud, financial institution fraud, and conspiracy to commit cash laundering, and was sentenced to 5 years of imprisonment. 

The district courtroom had dominated that cellphone searches on the border require affordable suspicion and located that suspicion current. The Second Circuit affirmed the conviction however rejected that reasoning. 

What the courtroom held 

• No suspicion required for a handbook search. The courtroom utilized its precedent that searches of a traveler’s property on the border are routine, handled a cellphone as property, and concluded {that a} handbook search of a telephone is a routine search the federal government could conduct with out suspicion. 
• Riley doesn’t apply on the border. The courtroom held that Riley v. California (2014), which requires a warrant to look a telephone incident to arrest, rests on a distinct exception and doesn’t alter the border-search guidelines. 
• Not restricted to contraband or border crimes. The courtroom held that the border-search exception is just not restricted to looking for contraband or proof of border offenses, and that the validity of a border search doesn’t depend upon whether or not a prison investigative motive prompted it. 
• No First Amendment warrant requirement. The courtroom rejected the argument, raised by amici the Knight First Amendment Institute and the Reporters Committee for Freedom of the Press, that the First Amendment independently requires a warrant to look a telephone on the border. 
• District courtroom selections rejected. The courtroom recognized United States v. Smith (S.D.N.Y. 2023), United States v. Sultanov (E.D.N.Y. 2024), United States v. Fox (E.D.N.Y. 2024), and United States v. Djibo (E.D.N.Y. 2015), every of which had required a warrant, and acknowledged that these selections are fallacious. 

Judge Eunice Lee concurred solely within the judgment. She agreed that neither a warrant nor possible trigger is required, however disagreed that telephone searches are routine searches requiring no suspicion in any respect, writing {that a} cellphone “is just not a suitcase.” 

What the courtroom didn’t determine 

In a footnote, the bulk acknowledged that as a result of the case concerned solely handbook assessment, it didn’t have to determine whether or not subtle forensic strategies, equivalent to off-site forensic evaluation of a telephone’s knowledge, may qualify as a nonroutine search requiring affordable suspicion. The courtroom added that the query could typically lack sensible significance as a result of a suspicionless handbook search may set up affordable suspicion for a forensic one. 

The Second Circuit is the federal appellate courtroom for New York, Connecticut, and Vermont (28 U.S.C. § 41). The opinion surveyed different circuits, summarized under. 
Source: United States v. Alisigwe, No. 24-960 (2d Cir. Sept. 17, 2026), slip op. notes 8 and 9. 

What CBP’s 2026 Directive Requires of Officers 

The courtroom units the constitutional ground. CBP’s inside coverage units the procedures its officers comply with. CBP Directive 3340-049B, Border Search of Electronic Devices, took impact January 1, 2026, and supersedes Directive 3340-049A (January 4, 2018). CBP summarizes its machine search authority on its Border Search of Electronic Devices web page.  

Basic and superior searches 

• Basic search. An officer could conduct a primary search, which means a assessment of data residing on the machine, with or with out suspicion (Section 5.1.3). 
• Advanced search. An superior search is one wherein an officer connects gear, wired or wi-fi, to repeat or analyze a tool’s contents. An officer could carry out one solely the place there may be affordable suspicion of exercise in violation of legal guidelines CBP enforces or administers, or, absent affordable suspicion, the place there’s a nationwide safety concern. Advanced searches require supervisory approval at Grade 14 or increased, and a national-security-only search requires approval from the Director, Field Operations or an equal official (Sections 3.4 and 5.1.4). 
• Equipment used solely to achieve entry. Using exterior gear merely to make contents out there for inspection, for instance to bypass a password, overcome encryption, translate content material, or cost a tool, doesn’t make a search a complicated search (Section 3.4). 

Cloud knowledge, passcodes, and detention 

• Remote knowledge. A border search covers solely data resident on the machine. Officers could not deliberately use the machine to entry data saved solely remotely, and can both ask the traveler to disable community connectivity (airplane mode, Bluetooth, and Wi-Fi) or disable it themselves (Section 5.1.2). 
• Passcodes. The directive states that vacationers are obligated to current units in a situation that enables inspection. Officers could request passcodes. If an officer can’t full an inspection attributable to a passcode or encryption, the officer could detain the machine (Sections 5.3.1 and 5.3.3). Passcodes are to be recorded solely in a short lived format, not uploaded into CBP methods, and deleted when not wanted (Section 5.3.2).
• Detention. Detention after the traveler leaves the port requires supervisory approval and ordinarily shouldn’t exceed 5 calendar days absent extenuating circumstances. Extensions past 5 days require Port Director-level approval, and extensions past 15 days are accredited in increments of not more than seven days. The officer should subject a Form 6051D custody receipt (Section 5.4.1). 
• Retention. CBP could retain copies of data the place there may be possible trigger to consider it incorporates digital contraband or proof of a violation of legislation CBP enforces. Without possible trigger, CBP could retain solely data regarding immigration, customs, and different enforcement issues, in keeping with the relevant system of information discover. Otherwise, CBP will retain no copies past 21 calendar days after the search concludes (Section 5.6). 

Privileged and trade data 

• Attorney-client privilege and work product. When an officer encounters materials recognized or asserted as privileged, the officer seeks clarification (in writing if practicable) as to particular recordsdata, folders, legal professional or shopper names, and comparable particulars, and contacts the CBP Associate/Assistant Chief Counsel workplace earlier than looking out it. Privileged materials is segregated by means of a Filter Team or one other measure accredited by counsel, and copies decided to be privileged are sanitized on the finish of the assessment except an imminent menace to life or homeland safety is recognized (Section 5.2.1). 
• Business confidential data. Officers encountering trade or business data are to deal with it as trade confidential and defend it from unauthorized disclosure. The Trade Secrets Act, the Privacy Act, and different legal guidelines could govern its dealing with (Section 5.2.3). 

What modified from the 2018 directive? 

Comparison of Directive 3340-049A (2018) and Directive 3340-049B (2026): 

Preparing People, Devices, and Data Before International Travel 

DTL’s learn: For vacationers coming into by means of New York, Connecticut, or Vermont, Alisigwe modifications what a courtroom in these states will suppress greater than it modifications CBP’s procedures on the inspection sales space. CBP coverage already permitted primary searches with or with out suspicion earlier than the ruling. The sensible danger for corporations is unchanged and important: something resident on a tool might be reviewed, and a tool that can not be inspected instantly might be held for later inspection. 

In our expertise, the businesses that deal with border machine searches properly deal with them as a compliance subject, not a journey inconvenience. We advocate the next: 

1. Carry solely what the journey requires. Consider travel-only units for workers who deal with shopper recordsdata, pricing, technical knowledge, or export-controlled data. The directive lists export-controlled data and theft of proprietary data among the many issues border searches can reveal (Section 1.2). 
2. Know what’s on the machine. DTL’s learn: the remote-data restrict protects solely data that isn’t resident on the machine. Email, messages, and recordsdata which have synced or downloaded to a telephone are on the telephone. 
3. Prepare privilege assertions upfront. Attorneys, in-house counsel, and executives carrying privileged communications must be able to determine particular recordsdata, folders, and legal professional or shopper names, which is the knowledge Section 5.2.1.1 says officers will request. 
4. Flag trade confidential data. Be ready to determine business data as trade confidential and to ask that it’s dealt with beneath Section 5.2.3. 
5. Decide the passcode query earlier than you journey. Under the directive, a tool that can not be inspected could also be detained. Discuss with counsel how your vacationers ought to reply, and whether or not a brief journey justifies carrying a tool you can not afford to lose for 5 days or extra. 
6. Update firm journey insurance policies. Address machine choice, knowledge minimization, privilege dealing with, and an escalation contact for workers referred to secondary inspection. 

If CBP Searches or Detains Your Device 

• Under Section 5.1.7, the traveler is to be notified of the aim and authority for the search and the way to search redress, except notification is withheld with supervisor approval. Ask for that data. 
• If the machine is detained, get hold of the Form 6051D custody receipt, file officer names and the port, and monitor the detention towards the five-day and 15-day approval thresholds in Section 5.4.1.1. 
• If privileged materials is on the machine, assert the privilege on the time of the search and determine it as particularly as potential. 
• Repeated referrals to secondary inspection or a Trusted Traveler revocation can comply with a border encounter. Diaz Trade Law has assisted people with Global Entry revocation appeals and traveler redress inquiries. 

Updating our 2017 steerage 

Our December 2017 article, Your Data is NOT Your Own at the Border, was written beneath CBP’s 2009 directive. Several factors have modified: 

How Diaz Trade Law Can Help 

Diaz Trade Law advises corporations and people on CBP inspections, secondary examinations, machine detentions, seizures, Global Entry revocations, and traveler redress, and helps corporations construct journey and data-handling insurance policies for workers who cross the border with delicate data. Related assets: Customs Wants to Know What’s in Your Laptop; Secondary Examinations When Traveling Internationally; CBP Seizures, Fines, Penalties and Forfeitures. 

Contact us at [email protected] or 305-456-3830.