Can officers search my electronic device at the airport or border?
You don’t have to be a law enforcement officer, lawyer, or suspect to be familiar with terms like reasonable suspicion, probable cause, search warrants, and so forth. Anyone who has ever watched a crime show on TV has heard these terms. The 4th Amendment protects us against unreasonable searches by the government. Government enforcement officials must meet certain standards or take certain steps before searching people, their homes, papers, and personal effects.
The Federal Government has authority to search and inspect people and goods coming into and going out of the U.S., an authority grounded in the sovereign’s right to control who and what may enter the country. As a result, there is a diminished right to privacy during an international border inspection than one someone is within the United States. U.S. Customs and Border Protection (CBP) has significant discretion in determining whether to conduct searches of individuals and their belongings at the border (land, sea, or air).
Can officers access the contents of my electronic device?
CBP, through a policy memorandum issued in January 2018, articulated policies and procedures for the search of electronic devices at the border.
- Border searches of electronic devices are limited to information stored on the device itself and accessible through the device’s own operating system. A USCBP officer may not use the device to access information solely stored remotely, which means that border searches do not cover anything stored only in the cloud.
To gain access, a CBP officer may request passcodes from the device owner and other means of access. The CBP officer is permitted to detain the device if the contents of a device cannot be inspected because of issues related to a passcode or other means of access to the device.
- CBP describes two types of electronic device searches: (1) Basic search, where a CBP officer examines the electronic device and its content and (2) Advanced search, where a CBP officer connects external equipment to a device to review, copy, and/or analyze contents on the device.
Significantly, the CBP policy states that prior permission from a supervisor is not needed for a basic search. An advanced search, however, requires reasonable suspicion of an immigration law violation or national security concern. An advanced search also triggers a series of procedural requirements, including supervisory approval, documentation of the search in the CBP database, the presence of a supervisor during the search or prompt notification to the supervisor if the supervisor was not available during the search, and the presence of the device owner during the search.
In February 2021, in Merchant v. Mayorkas, the U.S. Court of Appeals for the First Circuit, reversing a decision from the Federal District Court of Massachusetts, ruled that CBP officers may review the material stored on international travelers’ devices without a warrant, probable cause, or even reasonable suspicion of a crime.
- CBP confirmed that border searches of electronic devices are subject to applicable federal and state law and has articulated specific procedures. Information determined to be protected by law as privileged or sensitive will be shared only with agencies or entities that have mechanisms to appropriately protect this information.
Attorney-Client Privilege: When someone asserts attorney client-privilege for information stored on an electronic device, the CBP officer must, where practicable, seek a written list of the specific electronic documents, attorney names, and contact information that is subject to attorney-client privilege. The CBP officer then contacts the CBP Associate/Assistant Chief Counsel office, which in coordination with the U.S. Attorney’s office, ensures the segregation of privileged and non-privileged documents. Any copies made of materials determined to be privileged will be destroyed unless these materials indicate the existence of an imminent threat to homeland security.
Sensitive Information/Materials: Materials such as medical records and work-related information carried by journalists or other sensitive materials will be handled according to applicable federal law and CBP policy. Questions from CBP officers regarding the review of these materials will be directed to the CBP Associate/Assistant Chief Counsel office.
Business Confidentiality: Business or commercial information in electronic devices shall be treated as business confidential and protected from unauthorized disclosure.
Can officers seize my electronic device?
- Detaining a device. CBP, in its January 2018 memo, states that, without cause, an officer may detain a device for a “brief, reasonable period of time.” Increasingly higher-level approval is needed depending on the length of detention.
- Retaining a device. In contrast, to retain an electronic device or copies of information stored in it, probable cause that the device contains evidence of violation of law that CBP administers is required.
What steps can I take to protect my data?
There are different ways to protect data in light of CBP’s authority to search electronic devices. Removing apps that store sensitive data prior to traveling is one way to reduce the risk that CBP can access that sensitive data during an inspection. Another way is by securely deleting sensitive files, which goes beyond moving it to the “trash,” where it can still be accessed. As stated above, CBP is not permitted to access information stored remotely in the cloud and can only examine information on the physical device itself.
The above information has been provided for educational purposes only. Please contact your Clark Lau LLC attorney for a discussion of your specific circumstances.