Electronic Device Searches at U.S. Ports of Entry: What You Need to Know

U.S. Customs and Border Protection (CBP) has the authority to search electronic devices—including phones, laptops, tablets, and other electronic devices—of anyone entering the U.S., including U.S. citizens and non-citizens. These searches can happen at U.S. land crossings, airports, seaports, and even at CBP preclearance locations abroad. These searches can occur without a warrant or suspicion.

Types of Searches

• Basic Search: A border search of an electronic device that generally involves an officer manually reviewing the contents of the device without using any external equipment.
• Advanced Search: An officer connects external equipment to an electronic device to access its contents, review, copy, and/or analyze them. CBP must have a reasonable suspicion of a violation of law or a national security concern and obtain pre-approval from a senior manager before conducting an advanced search.

Why This Matters to You

• Privacy Risks: CBP may access personal, confidential, and sensitive data.
• Legal Considerations: Your rights are limited at the border, but you can take steps to protect your data.
• Possible Consequences: If you refuse to provide access, your device may be seized. Visa holders may be denied entry to the United States if they refuse to provide access. At preclearance locations, this may result in being denied boarding.

Eleven Smart Steps to Protect Your Data at the U.S. Border

1. Travel Light: Carry only necessary devices. Consider using a dedicated travel device with minimal personal data.
2. Back Up Before You Go: Save important files securely in the cloud or an external drive before traveling. Keep backups separate from your laptop.
3. Prioritize Password Security: Secure devices with unique, complex passwords. Although fingerprints and other biometric locks offer convenience, they are generally considered less secure than strong passwords. Enabling two-factor authentication whenever possible adds an extra layer of security.
4. Know Your Rights:
   ◦ You are not required to share your password, but refusal may lead to device seizure.
   ◦ Visa holders may be denied entry to the U.S. if they refuse to provide access. At preclearance locations, this may result in being denied boarding.
5. U.S. citizens can refuse to answer questions beyond identity and travel details, though this may cause delays. Lawful permanent residents cannot be denied entry but may face additional scrutiny. Visa holders may be denied entry if they refuse to answer questions about their trip and visa status.
6. Document the Search: Write down details of the search, including the names and badge numbers of CBP agents. Document the questions they ask. If your interview was recorded, ask for a copy of the transcript.
7. Minimize Stored Data: Carry less data across the border. Consider traveling with a laptop free of sensitive data or apps that collect and store sensitive information. Securely delete files instead of just moving them to the trash. Think about leaving your usual phone at home and buying a temporary phone, then transferring your SIM card or getting a new number at your destination.
8. Encrypt Your Devices: Enable full-disk encryption on all your devices for added security. Use strong passphrases instead of simple passwords.
9. Turn Off Devices Before Border Crossing: Power down your devices completely before reaching the border to help protect against potential remote access attacks and data interception.
10. Inspect Devices Upon Return: If your laptop is confiscated and later returned, boot it using an external drive and perform a thorough scan for any unauthorized software or changes.
11. Limit Cloud Access: The border search will only examine information on the device at the time of the search and cannot access information stored remotely. Sign out of sensitive apps, disable automatic logins, and consider removing apps that store personal data. Additionally, you may consider using a VPN for electronic devices.

How to Handle Interactions with U.S. Border Agents

• Be Honest: Never lie to CBP officers.
• Stay Calm: Do not argue or interfere with an inspection.
• Understand Inspection Authority: CBP has the authority to physically inspect electronic devices. While you are not required to provide your passwords, refusing to do so may result in possible consequences, such as device seizure or denial of entry.

For further information or questions you may have, please feel free to contact The Law Offices of Michael H. Markovitch at: Information@mmlawnyc.com.