What to Do When Your Device is Searched at the US Border
In our practice we’ve seen more clients stopped at the US border and had their electronic device, usually a mobile phone, confiscated when being questioned at the border. Frequently, this will involve someone who is perhaps travelling to the US too frequently as a visitor and may not necessarily have issues such as criminal arrest or conviction history in their background to require a search of their device. Some of these may be existing clients who we have talked to about entering the US or it could be someone who didn’t realize what they were getting into when asking for entry into the US and just handed over their device without considering the consequences. Either way, it’s never a good sing if a CBP Officer asks to see your device.
Our experience reflects what is happening according to US Department of Homeland Security data, Custom and Border Protection (CBP) officers inspected 10,600 more devices in fiscal year 2017 than it did in FY 2016 at US ports of entry:
“CBP processed more than 787 million travelers upon arrival at U.S. ports of entry in fiscal years 2016 and 2017, and searched approximately 47,400 electronic devices. In fiscal year 2016, CBP processed more than 390 million travelers arriving at U.S. ports of entry and searched the electronic devices of an estimated 18,400 of those inbound travelers (.005 percent). In FY 2017, CBP processed more than 397 million travelers and searched the electronic devices belonging to more than 29,000 of those inbound travelers (.007 percent).” DHS OIG Highlights December 3, 2018
This Office of Inspector General (OIG) audit also found that CBP Officers did not always conduct electronic searches as they should under the standard operating procedures. Therefore, while only .007 percent of inspections result in electronic searches, this audit report demonstrates the need to consider what devices you bring with you and the data you carry on those devices.
When entering the US, you should be aware that CBP has broad ability to search devices even if there is no suspicion of any wrong-doing. CBP often state that review of devices is a tool to identify those who may be involved with terrorism or engaging in child pornography though even the most innocent travelers could have their devices searched. The DHS data reflects that the majority of travelers’ devices aren’t searched but if you keep work or other private data on your electronic devices you need to consider what would you want CBP to see when travelling into the US.
In January 2018, CBP issued a new directive on searching devices at the border which allow CBP Officers to, the course of a “Basic Search” to examine an electronic device and review and analyze information they encounter when inspecting an individual at the border. The directive does mention that CBP Officers who identify or if the traveler asserts that information found on a device is privileged or attorney work product, the Officer should contact the CBP Associate/Assistant Chief Counsel Office.
When coming through the US border with electronic devices, you should consider whether the information contained on your device may come under review if you are sent to secondary inspection. Therefore, it’s advisable to take off any data or information that could be misconstrued as affecting your ability to enter the US. For example, one of my clients was refused entry to the US after the CBP Officer found email correspondence between me and my client indicating that he was in the process of applying for a visa. This did not conflict with his temporary travel Visa Waiver Program status he was requesting at the border because he had a return ticket to return after his short trip and, while he had a business in the US, he had several managerial staff in the US who were working in the US. This tells me that you will either be refused entry because CBP can see what is on your phone or you will be refused entry because you didn’t allow CBP to see what was on your device.
–Janice Flynn, Principal Lawyer