Since a Supreme Court decision in 1925, U.S. border agents have been permitted to conduct port-of-entry searches without a warrant on all individuals attempting to enter the country. This longstanding rule, known as the “border search exception” to the 4th Amendment, is deemed to be in the national security interest and even applies to U.S. citizens as well as lawful permanent residents. In 2009, U.S. Customs and Border Protection (CBP) released its current policy on such warrantless searches pertaining to travelers’ electronic devices. Basically, the policy permits CBP to search all electronic devices at any port-of-entry “without individualized suspicion.”
Even though electronic device searches are not new, the application of these searches has nearly doubled in the first 6 months of FY2017, going from 8,000 searches in the previous 6 months to 15,000. Furthermore, CBP has started encompassing individual social media accounts as part of its electronic device searches. Even password-protected devices and accounts are not safe from scrutiny. Plus, individuals do not have to consent to searches—CBP reserves the right to seize the device(s) in question. If a device is seized, CBP can retain the device for 15 days, with the ability for continuous 7-day extensions. Once the device is in CBP custody, there is no maximum period after which it must be returned.
However, device seizure may be the best possible outcome if a traveler does not grant consent to CBP’s search. Other options granted to CBP include detainment, arrest, and, in the case of non-U.S. citizens/residents, refusal of admission or expedited removal. Clearly, these are all worrisome outcomes for the average traveler.
Why would they choose you? Perhaps you have a name that matches a person of interest in the government’s database. Maybe you have previously violated one of the immigration laws. You do not have the proper documents or visa and you are trying to enter the country or you have been selected for a random search. CBP does not need probable cause to search.
The good news is that prudent travelers can (and should) prepare for electronic device searches at the border. One of the exceptions to the CBP policy is that it does not apply to data stored on remote servers or the cloud. Hence, travelers should keep their local data limited to only necessary information. Another exception is privileged information, such as communications between attorney and client. If a traveler has privileged information on his/her device, the CBP officer should be notified immediately. While the presence of privileged information may not completely halt the search, it does require the involvement of a supervising entity.
In an age when border security is at the forefront of national interest, a continued increase in electronic device searches by CBP can be expected. All travelers should take steps to safeguard their private information.
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