Can border agents search my phone, laptop and other electronic devices?

Image courtesy of Pixabay.

UPDATED: September 14, 2017

With tighter security and screening at U.S. borders and ports, this is a question we get a lot at Torregoza Legal. Ordinarily, the police need a warrant in order to conduct a search of your person and your belongings. However, at borders and airports, Customs and Border Protection (CBP) agents have broader authority to conduct routine searches of people and their belongings that police on the street would not have. It is important to remember that for “non-routine” searches (e.g. strip search), agents must reasonably suspect that the person is involved in some criminal activity.

A border agent asks to search my electronic device. What now?

Unfortunately, this is becoming an increasingly common scenario. According to the Electronic Frontier Foundation, within a one-year period, there was a five-fold increase in the number of electronic media searches at the border from 4,764 (2015) to 23,877 (2016). This number is expected to increase with the implementation of the Trump administration’s “extreme vetting” policy.

Border agents have a wider latitude in conducting border searches. Laws that allow agents to search bags without a judge’s approval, for the purposes of immigration or security compliance, have been extended to digital devices. Organizations such as the American Civil Liberties Union (ACLU) disagree with this position as they believe phones and computers paint a far more detailed picture of our private lives than, say, a piece of luggage. In fact, the ACLU has recently filed a lawsuit challenging such searches as unconstitutional.

If CBP agents ask to search your phone, you can state that you don’t consent to such a search, but unfortunately this likely won’t prevent CBP from taking your phone.

Can CBP ask for my password or unlock my device?

No. But they can ask you to comply voluntarily and make the experience rather uncomfortable if you resist. You may end up losing your device since agents could seize the device for weeks before it is returned. They could also copy the data.

If you’ve given CBP agents the password to your device (or if you don’t have one), they might conduct what’s often called a “cursory search” on the spot. According to CBP policy from 2009, they are not required to return your device before you leave the airport or other port of entry, and they might choose to send it off for a more thorough “forensic” search.

What happens if I refuse to comply?

If you’re a citizen, you can’t be denied entry into the country if you refuse to comply with a request to unlock your device or to provide a password. But you might be detained for longer or have your device seized and not returned to you for weeks or months as we noted above.

The same should be true for those who have previously been admitted to the United States as lawful permanent residents and have maintained their status — their green cards can’t be revoked without a hearing before an immigration judge. If you are not a citizen and are concerned about having your devices searched, you should consult with an immigration lawyer about your particular circumstances before traveling.

Visa holders and tourists from visa waiver countries, however, run the risk of being denied entry if they refuse to provide a password, and they should consider that risk before deciding how to proceed. The Department of Homeland Security is currently instituting a policy requiring visitors from certain countries to provide additional information, such as social media passwords in order to secure a visa to travel to the U.S.

How should I plan for my travel?

There is no one-size-fits-all approach as there are a variety of factors that can influence the precautions that travelers take at the U.S. border to protect their privacy. Here are a few things to consider:

  • Factors about you: citizenship, immigration status, travel history, law enforcement/criminal history.
  • Your data and devices: How sensitive are your data (doctor, lawyer, etc.)? Can you tolerate losing your device or data? Who owns the device?

Here are some basic rules for everyone from the Electronic Frontier Foundation’s Digital Privacy at the Border Guide:

  1. Decide how you will respond to border agents’ demands before you arrive at the border. Make this decision holistically, in light of your unique risk assessment factors, along with all of the other important considerations.
  2. Stay calm and respectful. Staying calm will help you make better decisions. Also, if you get emotional or disrespectful, some agents may escalate the encounter. CBP, in turn, pledges to treat travelers with “courtesy, dignity, and respect.”
  3. Do not lie to a border agent. It is a crime to make a false statement to a law enforcement official who is asking you questions as part of their job.
  4. Do not physically interfere with a border agent. This includes complying with demands to open your luggage or hand over your digital devices. Border agents may legally inspect the physical aspects of a device — for example, the battery compartment or inside a case — to ensure that it does not contain contraband such as drugs or explosives. If you do physically interfere, border agents may respond with physical force.
  5. If you have any problems, try to document the names, badge numbers, and agencies of the officers you interact with at the border. If you decide later to file a complaint about the way the officers treated you, it will be easier to do so if you know who they were. Also, if officers seize your digital devices, politely demand a property receipt (Customs Form 6051D).

If you would like information about traveling to the United States and have questions about immigration law, please contact us. We are here to help. Follow us on Instagram, Twitter, Facebook or LinkedIn for up-to-date immigration news.