Travelers have long been accustomed to searches of their luggage by immigration and customs officers when entering the U.S. However, a recent lawsuit filed by the American Civil Liberties Union (ACLU) against the Department of Homeland Security (DHS), and Customs and Border Protection (CBP) in particular, raises the question of just how far the government’s border search authority extends, particularly as it concerns travelers’ laptops, smartphones and other mobile electronic devices (collectively, “electronic devices”).
Can CBP search my electronic device when I exit or enter the United States?
In short, yes. While the 4th Amendment to the U.S. Constitution generally protects all individuals from warrantless and suspicionless searches, the U.S. Supreme Court has consistently recognized a “border search exception” to the 4th Amendment’s warrant requirement. In other words, courts have consistently found that warrantless and suspicionless searches at the border are “reasonable” in light of the government’s interest in protecting “it’s territorial integrity.” CBP has interpreted the border search exception to permit warrantless searches of electronic devices, including password protected devices.
Per CBP policy, CBP officers may examine electronic devices “without individualized suspicion” and may retain an electronic device “for a reasonable period of time” in order to conduct a search of the device’s contents. However, CBP is authorized to connect the electronic device to external equipment to review, copy or analyze the contents of that device only if they can demonstrate “reasonable suspicion” of a customs or immigration law violation, or a “national security concern.”
According to CBP, requesting that a traveler provide the PIN or password to his or her electronic device is no different than “requesting that the traveler open the manual lock on his or her suitcase.” Importantly, however, CBP has clarified that their search authority extends only to information “physically resident on an electronic device” and that CBP search authority does not extend to information “that is located solely on remote servers,” or “in the cloud.”
What are the chances of CBP searching my electronic device?
The number of electronic device searches remains small in comparison to the total number of travelers entering the U.S. on a daily basis, although the frequency of searches has increased significantly in recent years.
According to CBP, a total of 8,503 border searches of electronic devices occurred in fiscal year (FY) 2015, which rose significantly to 19,033 border searches of electronic devices in FY 2016, and 30,200 in FY 2017.
While there are differing reports regarding more recent search data, there are strong indications the number of searches continues to increase, and according to the ACLU suit, such searches have expanded to include “general law enforcement purposes…beyond violations of immigration and customs laws” enforceable by CBP.
How does CBP handle privileged or other sensitive material stored on an electronic device?
According to CBP, privileged or other sensitive material stored on an electronic device “are not necessarily exempt” from a border search, although reasonable measures will be taken to prevent unauthorized disclosure of that material.
On May 5, 2017, the American Bar Association (ABA) issued a statement expressing concern over the lack of safeguards to protect privileged information during a border search. In response, CBP enacted procedures in January 2018 to “ensure the segregation of any privileged material from other information examined during a border search.” The ABA has characterized the revised procedures as “a clear improvement over the prior policy,” but also indicated “more clearly needs to be done” and they “will continue to urge…[CBP] to further improve their policies by requiring border officers to obtain a subpoena based on reasonable suspicion or a warrant supported by probable cause before searching the contents of lawyer electronic devices.”
Can I refuse to provide the password or PIN to my electronic device?
According to CBP, if any traveler, including a U.S. citizen, refuses to provide his/her PIN or password, CBP considers it within their authority to retain the electronic device in question.
Whether or not CBP has the authority to also prohibit entry of the traveler depends on whether the traveler is a U.S. citizen, a non-immigrant (e.g., a foreign national traveling to the U.S. on a visa, such as H-1B, or via the Visa Waiver Program) or Lawful Permanent Resident (i.e., a “green card” holder).
CBP does not have the authority to prohibit the entry of a U.S. citizen to the U.S., even if they refuse to provide their PIN or password.
CBP does, however, have the discretionary authority to deny entry, or admission, to any non-immigrant traveler to the U.S. and would likely do so if the traveler refused to provide his/her PIN or password.
The rules regarding Lawful Permanent Residents are not as straightforward. CBP does not have the authority to prohibit the entry of a Lawful Permanent Resident to the U.S. unless the individual can be classified as an “intending immigrant,” meaning the individual (1) has not previously been inspected and admitted to the U.S.; (2) has abandoned their resident status; (3) has been absent from the U.S. for a continuous period of 180 days or longer; or (4) they have committed a criminal act, among other factors. Accordingly, a Lawful Permanent Resident who refuses to provide a PIN or password may face extensive questioning regarding his or her residency status to determine if he or she is an intending immigrant.
In addition to the seizure of the electronic device in question, any traveler who refuses to provide a password or PIN may be subject to lengthy questioning, arrest for obstruction of justice in specific circumstances or possibly be “flagged” for questioning during each subsequent entry to the U.S. (creating a significant burden for that traveler).
A traveler should carefully consider the consequences of refusing to comply with a CBP request for a PIN or password during the course of a border search.
Is there anything I can do to safeguard sensitive information on my electronic device?
Numerous privacy rights groups have suggested ways to safeguard sensitive information, including storing content in a cloud service, removing or deleting content, being sure to inform the CBP Officer of the presence of such information on your electronic device if selected for a search or simply leaving your electronic device at home if not needed.
In addition, the ABA, New York City Bar Association and Canadian Bar Association, among other groups, have also published guidance on how to safeguard privileged information while traveling.
The appropriate steps to safeguard sensitive information will vary from traveler to traveler. If a traveler has concerns regarding the disclosure of sensitive information during a border search, it is recommended to discuss those concerns and possible safeguards with legal counsel prior to traveling.
Can CBP search my electronic device when I exit or enter the United States?
In short, yes. While the 4th Amendment to the U.S. Constitution generally protects all individuals from warrantless and suspicionless searches, the U.S. Supreme Court has consistently recognized a “border search exception” to the 4th Amendment’s warrant requirement. In other words, courts have consistently found that warrantless and suspicionless searches at the border are “reasonable” in light of the government’s interest in protecting “it’s territorial integrity.” CBP has interpreted the border search exception to permit warrantless searches of electronic devices, including password protected devices.
Per CBP policy, CBP officers may examine electronic devices “without individualized suspicion” and may retain an electronic device “for a reasonable period of time” in order to conduct a search of the device’s contents. However, CBP is authorized to connect the electronic device to external equipment to review, copy or analyze the contents of that device only if they can demonstrate “reasonable suspicion” of a customs or immigration law violation, or a “national security concern.”
According to CBP, requesting that a traveler provide the PIN or password to his or her electronic device is no different than “requesting that the traveler open the manual lock on his or her suitcase.” Importantly, however, CBP has clarified that their search authority extends only to information “physically resident on an electronic device” and that CBP search authority does not extend to information “that is located solely on remote servers,” or “in the cloud.”
What are the chances of CBP searching my electronic device?
The number of electronic device searches remains small in comparison to the total number of travelers entering the U.S. on a daily basis, although the frequency of searches has increased significantly in recent years.
According to CBP, a total of 8,503 border searches of electronic devices occurred in fiscal year (FY) 2015, which rose significantly to 19,033 border searches of electronic devices in FY 2016, and 30,200 in FY 2017.
While there are differing reports regarding more recent search data, there are strong indications the number of searches continues to increase, and according to the ACLU suit, such searches have expanded to include “general law enforcement purposes…beyond violations of immigration and customs laws” enforceable by CBP.
How does CBP handle privileged or other sensitive material stored on an electronic device?
According to CBP, privileged or other sensitive material stored on an electronic device “are not necessarily exempt” from a border search, although reasonable measures will be taken to prevent unauthorized disclosure of that material.
On May 5, 2017, the American Bar Association (ABA) issued a statement expressing concern over the lack of safeguards to protect privileged information during a border search. In response, CBP enacted procedures in January 2018 to “ensure the segregation of any privileged material from other information examined during a border search.” The ABA has characterized the revised procedures as “a clear improvement over the prior policy,” but also indicated “more clearly needs to be done” and they “will continue to urge…[CBP] to further improve their policies by requiring border officers to obtain a subpoena based on reasonable suspicion or a warrant supported by probable cause before searching the contents of lawyer electronic devices.”
Can I refuse to provide the password or PIN to my electronic device?
According to CBP, if any traveler, including a U.S. citizen, refuses to provide his/her PIN or password, CBP considers it within their authority to retain the electronic device in question.
Whether or not CBP has the authority to also prohibit entry of the traveler depends on whether the traveler is a U.S. citizen, a non-immigrant (e.g., a foreign national traveling to the U.S. on a visa, such as H-1B, or via the Visa Waiver Program) or Lawful Permanent Resident (i.e., a “green card” holder).
CBP does not have the authority to prohibit the entry of a U.S. citizen to the U.S., even if they refuse to provide their PIN or password.
CBP does, however, have the discretionary authority to deny entry, or admission, to any non-immigrant traveler to the U.S. and would likely do so if the traveler refused to provide his/her PIN or password.
The rules regarding Lawful Permanent Residents are not as straightforward. CBP does not have the authority to prohibit the entry of a Lawful Permanent Resident to the U.S. unless the individual can be classified as an “intending immigrant,” meaning the individual (1) has not previously been inspected and admitted to the U.S.; (2) has abandoned their resident status; (3) has been absent from the U.S. for a continuous period of 180 days or longer; or (4) they have committed a criminal act, among other factors. Accordingly, a Lawful Permanent Resident who refuses to provide a PIN or password may face extensive questioning regarding his or her residency status to determine if he or she is an intending immigrant.
In addition to the seizure of the electronic device in question, any traveler who refuses to provide a password or PIN may be subject to lengthy questioning, arrest for obstruction of justice in specific circumstances or possibly be “flagged” for questioning during each subsequent entry to the U.S. (creating a significant burden for that traveler).
A traveler should carefully consider the consequences of refusing to comply with a CBP request for a PIN or password during the course of a border search.
Is there anything I can do to safeguard sensitive information on my electronic device?
Numerous privacy rights groups have suggested ways to safeguard sensitive information, including storing content in a cloud service, removing or deleting content, being sure to inform the CBP Officer of the presence of such information on your electronic device if selected for a search or simply leaving your electronic device at home if not needed.
In addition, the ABA, New York City Bar Association and Canadian Bar Association, among other groups, have also published guidance on how to safeguard privileged information while traveling.
The appropriate steps to safeguard sensitive information will vary from traveler to traveler. If a traveler has concerns regarding the disclosure of sensitive information during a border search, it is recommended to discuss those concerns and possible safeguards with legal counsel prior to traveling.