Last night NBC News reported about a group of US citizens who crossed the border to go to dinner in Canada and were shocked when Customs and Border Protection refused to allow them back into the country unless they surrendered their phones for search. A lot of my clients have been asking about what the rules are regarding phone and laptop searches and I’ve prepared this FAQ document based on my research. Please feel free to add in the comments any additional insights you can provide.
Q: Can a CBP officer at an airport search through my phone or laptop without a warrant?
A: Unclear. The 4th Amendment protection against warrantless searches has been held by courts to not apply in the same way in the immigration and customs section of an airport as it does anywhere else. The cases have largely dealt with luggage searches but the US government has extended this interpretation to electronics searches. This view has been severely criticized by civil rights organizations and the question may end up being resolved by the courts. In the meantime, the government is interpreting the law to allow such searches.
Q: What is the likelihood that my phone or laptop will be searched?
A: CBP told the New York Times in a February 2017 interview that searches have dramatically increased in recent months. In 2015, only 4,444 phones and 320 devices were inspected compared to 23,000 inspections in fiscal year 2016.
Q: Can CBP force you to unlock your phone or laptop?
A: Probably not. Many legal scholars and civil rights organizations say it is voluntary, but CBP has taken the position that failing to provide the password may violate laws that require one to provide aid to a border officer upon request. From a practical standpoint, if you do not cooperate, CBP can take your device and not return it for many weeks or even months. You can also be detained and questioned for an extended period if you do not provide the information. CBP has not provided guidance on the length of time an individual may be detained or how long a phone or device may be kept before it is returned.
US citizens are guaranteed reentry to the US so any wait must be reasonable but the phone can still be confiscated. However, a visa holder could face a denied entry altogether if they do not cooperate. Green card holders should not be barred from entry over this issue. However, Siskind Susser has learned that a great number of green card holders were refused entry and even forced to surrender their green cards since the travel ban took effect. While there is a genuine question of the lawfulness of these entry denials, we are advising clients to be very cautious.
Q: Can CBP download the contents of my phone?
A: It is unclear whether this is permissible but Siskind Susser is aware that this is happening. NBC News reports that CBP takes the position that it can download a copy of the contents of your phone regardless of whether you consent.
Q: Does CBP have a right to view my social media posts?
A: Unclear. CBP has generally taken the position that providing this information is voluntary. However, if you provide your phone pin code, you may not need to provide passwords if the apps being accessed by CBP do not require passwords each time they are opened. CBP is also requesting social media user names and passwords in entry documents for non-immigrants. However, they still are making this information voluntary. On the other hand, it has long been the practice of consular officers, CBP and USCIS to google applicants names in advance of interviews and much of your social media information is available without passwords, etc.
Q: What options do I have if I do not want CBP rifling through my personal information?
A: Traveling with a temporary or loaner phone without leaving private data on the phone is an option. The same is true with regard to a laptop or tablet. An option may be to keep data in the cloud and not locally on a computer and wipe your phone and computer before clearing customs.
Q: What are the prospects for changes in the rules in the future?
A: Oregon Senator Ron Wyden has introduced a bill to bar CBP from conducting phone and device searches without a warrant. Wyden is also pressing the Department of Homeland Security to answer questions about the legal underpinnings of the searches. Wyden’s letter can be found at http://i2.cdn.turner.com/cnn/2017/images/02/17/2123_001.pdf .
Q: Am I entitled to a lawyer if I get sent to secondary inspection for questioning?
A: US citizens are always entitled to a lawyer. Permanent residents and non-immigrants generally are not unless the questions are related to matters of a criminal nature.
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