What All International Travelers Entering or Departing the U.S. Need to Know About Electronic Devices
Beginning in 2017, there have been an increasing number of incidents of U.S. Customs and Border Protection (“CBP”) confiscating and searching electronic devices of travelers entering or departing the United States. The increase in these types of CBP incidents has raised many questions as to the scope of the CBP’s search authority. With the release of the March 6, 2017, “Presidential Memorandum on Implementing Heightened Screening and Vetting of Applications for Visas and Other Immigration Benefits,” these CBP incidents are likely to occur even more frequently as the Trump presidency continues. This FAQ serves to answer common questions regarding the rights and risks of travelers subjected to such searches.
What has changed under the Trump Administration?
While CBP has exercised its power to search electronic devices since the George W. Bush Administration, the practice was used less frequently and initially focused on specific individuals. The practice increased in 2015 and 2016, but it has skyrocketed under the Trump Administration starting in 2017. NBC News reports that 5,000 electronic devices were searched in February 2017 alone, which is more than the total number of electronic devices searched in the entirety of 2015. The steep rise in cell phone searches may be CBP agents reacting to the Trump campaign’s anti-Muslim rhetoric to push previously existing limits.
What can I do to protect my privacy on electronic devices before I return to the U.S. from a trip abroad?
Given the current administration’s unprecedented expansion of the government’s border search powers, travelers are advised to exercise increased precautions to protect digital privacy. The most basic precaution is to simply not travel internationally with any electronic devices or leave behind all non-essential electronic devices. While most travelers wish to carry a mobile phone, you may elect to leave your primary phone behind and bring a secondary phone. If you choose to travel with a secondary phone, ensure that it contains only the most basic personal information and contacts and is not set up to sync with any personal digital accounts you wish to keep private.
You also can take actions to protect access to data in your electronic devices. Tech experts suggest using encryption tools and strong passcodes to better protect and prevent access to your device’s hard drive. Travelers are also advised to: (1) disable access to any voice-activated systems, such as Apple’s Siri, from the lock-screen of your device; and (2) disable fingerprint touch identification because CBP arguably has more authority to require your fingerprint (rather than a passcode) at a border crossing.
To ensure that CBP cannot access your digital information, some security experts recommend setting up a two-factor authentication system for sensitive accounts, which will require a password as well as a code sent to your phone via text message to access the protected accounts. Under this system, if you do not physically possess the phone SIM card that allows you to receive the authorization text at the border, you will be unable to provide the CBP the access it requests.
With all of these precautions, however, please be aware that the more extreme the measure of protection, the greater the risk that CBP may find reasonable suspicion to seize your device and perform data extraction. In addition, some measures will increase your risk of lengthy detention and/or denial of entry for non-citizens.
When I return from a trip abroad, how much authority does CBP have to inspect me and my belongings?
When you cross the border, including at airports for international flights, CBP has the authority to interview you and examine your personal belongings by conducting a “routine search.” No suspicion of wrongdoing or a warrant is required for these interviews and routine searches. The interview may involve questions about your citizenship or immigration status, and it may include a request for documents or other evidence showing that you are eligible to enter the country. CBP’s “routine searches” extend to any personal belongings you have in your possession at the border, which typically includes luggage when entering the U.S. at the airport and belongings in vehicles when entering at a land crossing. Personally invasive searches, such as a body cavity search, are not considered routine and require a suspicion of wrongdoing.
Doesn’t the Fourth Amendment of the U.S. Constitution prohibit CBP from “unreasonable searches”?
The Fourth Amendment of the U.S. Constitution prohibits unreasonable searches and seizures by the government and requires that the scope of searches and seizures be limited to that contained in a judicially issued warrant based on probable cause. However, the “border search exception” to the Fourth Amendment allows for searches at the border without a warrant and without suspicion of wrongdoing. Routine searches at the border are allowed because the federal government has a sovereign interest in controlling who and what may enter the country. The border search exception is also premised on a traveler having a lower expectation of privacy when crossing a border than when present inside the country. Despite this exception, the Fourth Amendment still requires that the nature and scope of the search be reasonable. However, the Supreme Court has not clearly defined a reasonable versus an unreasonable border search, and courts generally employ a case-by-case analysis. This lack of clarity lends unpredictability to what kind of searches CBP will deem reasonable under the current administration..
Can CBP search my phone, laptop and other devices?
Yes. CBP policy explicitly authorizes the search of electronic devices, including computers, mobile phones, cameras, media players and storage devices, at the border. CBP considers these searches to be routine and conducts them regardless of suspicion of wrongdoing.
As of the time of writing of this article (March 2017), at least two federal appellate court decisions confirm this policy, holding that CBP may conduct routine searches of laptops or other personal electronic devices at the border without suspicion of wrongdoing. United States v. Ickes, 393 F.3d 501 (4th Cir. 2005); United States v. Arnold, 523 F.3d 941 (9th Cir. 2008). These decisions are based on the U.S. government’s right to require those seeking entry into the country to establish the right to bring into the country the items they carry. The Supreme Court has not defined the limits of a reasonable “routine” search of electronics at the border. Thus, travelers should be prepared that CBP, under the current administration, may attempt to conduct any manner of search of a personal electronic device
Do I have to give CBP the password to my phone and my social media accounts?
The law is unclear on whether a traveler is legally required to give a CBP officer passwords to electronic devices or social media accounts. There is an argument that forcing a person to disclose a cell phone password would violate the Fifth Amendment freedom from self-incrimination. However, federal courts throughout the country differ as to what level of protection, if any, the Fifth Amendment provides in this scenario.
Regardless, from a practical perspective, the CBP has great leverage in incentivizing a traveler to voluntarily disclose passwords as CBP may respond to such refusal as follows:
- For All Travelers, Regardless of Status: CBP may seize the electronic device for a forensic search, detain the traveler for lengthy questioning, and conduct further searches of personal belongings. On future trips, you may encounter increased scrutiny when you try to enter the United States.
- For Foreign, Temporary Visitors: CBP may deny the traveler entry into the United States
- For Lawful Permanent Residents: CBP may question and/or aggressively challenge the traveler’s lawful permanent resident status, which may trigger removal proceedings or authorize extended detention. CBP is more likely to question or aggressively challenge a Lawful Permanent Resident if the Lawful Permanent Resident has been out of the U.S. for extended periods of time or has a criminal record.
I am a U.S. citizen. Can CBP force me to give them my passwords for my electronics?
CBP cannot force a U.S. citizen to disclose a password. However, CBP may seize your electronic device, detain you for additional lengthy questioning, and conduct further searches of your personal belongings. This may mean that you miss a flight or delay your entry into the U.S., and you may not have the opportunity to communicate with family or friends awaiting your arrival. You are not entitled to a lawyer during detention by CBP. Accordingly, if you intend to refuse disclosing your password, it would be wise to inform a lawyer or someone who can contact a lawyer aware of your travel plans. That way, in the event you a subject to a lengthy detention and denied telephone access, a lawyer can advocate for your release. If you refuse to disclose your passwords, it is highly possible that CBP will hold your device from you for an extended period in order to perform forensic data extraction. Ultimately, however, CBP may not deny your personal admission to the United States solely for your refusal to provide a password to an electronic device.
If my electronics are taken by CBP, what could happen with the information on my devices?
Under a typical routine border search, CBP may search your device and all of its applications while you are detained. If CBP moves beyond this type of search, data may be extracted from your device. This may happen on- or off-site (potentially over the course of several days if CBP seizes your phone). The U.S. Department of Homeland Security website lists 26 reports regarding the capabilities of various “mobile device acquisition tools,” each with varying capacities for extracting data from various mobile device models. These tools are able to extract deleted data, call history, contacts, text messages, multimedia messages, files, events, notes, passwords for wifi networks, reminders and application data from apps such as Skype, Dropbox, Evernote, Facebook and WhatsApp. This type of data extraction is arguably a “forensic search” that differs from the “routine” electronic device search authorized under the border search exception of the Fourth Amendment. However, because – at time of writing (March, 2017) – the Supreme Court has not directly addressed whether the CBP can conduct forensic data extraction without reasonable suspicion of wrongdoing, CBP agents may view data extraction as fair game regardless of any suspicion.
On the other hand, the Ninth Circuit has held that reasonable suspicion is required for such a forensic search. United States v. Cotterman, 709 F.3d 952 (9th Cir. 2013) (en banc). Yet, it is unclear whether the CBP is taking the Ninth Circuits decision into account in the states in which it is legally binding (California, Arizona, Nevada, Oregon, Washington, Alaska, Montana, Idaho and Hawaii). Further, if you refuse to provide your passcodes, CBP may interpret such refusal to constitute the reasonable suspicion that supports a forensic search.
According to CBP policy, a CBP officer may take your device for up to five days regardless of suspicion of wrongdoing and may keep your device longer if there are “extenuating circumstances.” CBP should give you a “custody receipt” if they are detaining your device. CBP policy also provides that if there is no probable cause to seize the detained device, copies of extracted data must be destroyed, and the device must be returned to you.
Travelers should also bear in mind that traditionally confidential information, such as legal materials, medical records, journalism materials, proprietary information and trade secrets, are not exempt from a border search. CBP policy only requires consultation with legal counsel regarding the handling of some categories of these materials.
How does Trump’s March 6, 2017, “Presidential Memorandum on Implementing Heightened Screening and Vetting of Applications for Visas and Other Immigration Benefits” impact the way CBP will inspect travelers?
The March 6, 2017, presidential memorandum calls for the “immediate implementation of additional heightened screening” of immigrants and directs the Secretary of State, Attorney General and the Secretary of Homeland Security, as well as other relevant departments and agencies, to “rigorously enforce” existing grounds of inadmissibility. The memorandum also orders those departments and agencies to issue new rules, regulations, or guidance to enforce laws relating to such grounds of inadmissibility and subsequent compliance. These new rules will supersede any previous rules with which they conflict.
The “rigorous enforcement” of inadmissibility grounds likely means that CBP will subject travelers to more extensive and detailed questioning, conduct more frequent and more intensive searches, and will be unwilling to offer travelers the benefit of the doubt or make exceptions for unintentional or inconsequential immigration violations.
What does “enhanced vetting procedures” mean in the real world?
The March 6, 2017, presidential memorandum also calls for “enhanced vetting protocols and procedure” for all immigration benefits. This means that CBP may take extreme measures to have a non-citizen prove his or her admissibility to the country. For example, reports indicate that CBP has required immigrants arriving on business visas to take tests demonstrating expertise in their purported occupation. The ACLU and other groups are very concerned that under the Trump Administration such enhanced vetting will target Muslim immigrants.
By Camiel Becker
Disclaimer: The information contained in this advisory is current as of March 28, 2017. This information is intended to provide a general overview of a changing legal issue and is not a substitute for legal advice. If you have specific questions about specific details related to your situation, you should seek independent legal advice.