While historically rare, U.S. Customs & Border Protection (CBP) Officers are authorized to search electronic devices of any international traveler entering or leaving the United States, including U.S. citizens. Recently, there have been high-profile cases of individuals with valid work visas detained and removed from the United States, based on information found on their electronic devices.
This LEGALcurrents provides important recommendations for travelers, a brief overview of the nature of electronic searches, their key legal requirements and recommended best practices for international travelers.
Key Takeaways:
- Think critically about your electronic devices and the information they contain.
- Do you need to bring that device on your international trip?
- Does the device contain any information or data that you have an obligation to keep private such as privileged or proprietary information?
- Is there information that you can keep “on the Cloud” and not download to your device?
- Think about the data on your device the way you think about packing your luggage, be thoughtful about what you “pack” on your phone or laptop.
- Do not keep any information, data, or files on your device that you would not be comfortable showing to a U.S. government official.
- Know what’s on your device and keep a clear separation between information stored on your device (i.e., what is accessible in airplane mode and therefore by CBP) as opposed to information stored remotely (i.e., on a Cloud, not to be accessed by CBP).
- Remember that Trash, Recycle Bin, and “deleted” folders are still accessible in airplane mode.
- Be mindful of what is posted on your social media accounts. Do not post anything you would not be comfortable showing to a U.S. government official.
- Know your rights. You do not have to unlock or enter passwords for your electronic device, but CBP can confiscate the device for several days while they use forensic tools to attempt to unlock it.
- International travelers do not have the right to counsel at the U.S. border. If you feel your rights have been violated, document as much information as you can about the event including names, badge numbers, time of day and details about the incident. Contact an immigration lawyer as soon as possible.
Devices and Digital Content Subject to CBP Search
CBP may search electronic devices including cell phones, computers and cameras. CBP searches these devices not only to uncover potential terrorist or criminal activity, but also to determine the individual’s intentions with respect to entering the U.S., including to discover visa fraud. For example: An artist claiming to come to the United States to participate in an artist workshop at their own expense is found to have several photos of their own artwork in their phone, each labeled with a name and price, along with electronic notes about specific commissions. Based on the electronic device search, the CBP officer may conclude that the artist intends to work as a commercial artist in the United States without a valid work visa. The artist could be refused entry for lack of proper immigration documents and even for misrepresenting the purpose of their trip.
CBP distinguishes between basic and advanced searches. During a basic search, the CBP officer reviews the contents of the device without using any external equipment. In contrast, an advanced search means the officer uses external equipment to access, review, copy and/or analyze information stored on the electronic device. According to CBP policy, an advanced search requires reasonable suspicion of a violation of law enforced or administered by CBP, or a national security concern. Additionally, it requires approval by a senior CBP manager.
Importantly, CBP officers can only search and access data stored on the device’s hard drive or operating system. The search does not include data that is stored remotely in a Cloud format. The officer must ensure that data and network connections are disabled before starting the search, for example, by asking the traveler to turn the device into airplane mode and disabling Wi-Fi.
According to CBP, less than 0.01 percent of arriving international travelers were subject to a CBP electronic device search in Fiscal Year 2024. Of those, about 90% were basic searches without connection to external equipment. However, there are reports of increased electronic device searches in the first months of the Trump administration.
Traveler Rights
The Fourth Amendment to the U.S. Constitution protects from unreasonable searches and seizures. This means that law enforcement searches generally require a judicial warrant based on probable cause before the officer can conduct a search. However, the CBP authority to conduct searches of electronic devices at the border is generally deemed to fall under the border search exception. This is a doctrine that permits warrantless searches and seizures at international borders and their functional equivalent, i.e., the area within 100 miles of an international border. This type of search is considered a “reasonable search”, which exempts CBP officers from the requirements of obtaining a warrant or establishing probable cause.
There are some limitations to CBP’s authority to conduct these searches. However, exactly when or where that authority stops remains to be determined by the courts. For practical purposes, travelers should assume that CBP can search electronic devices and will do so with few, if any, limitations.
If the traveler refuses to provide access to the device (e.g., by refusing to unlock it with the password), CBP may detain the device and provide the traveler with a custody receipt. The retention period is not to exceed 15 days, but CBP may keep the information longer if it is part of an active investigation or law enforcement activity. More importantly, a foreign national traveler might be denied admission to the United States and/or subject to law enforcement actions. A U.S. citizen refusing to cooperate will not be denied entry to the United States, but their device may be confiscated. Travelers have the right to assert that information on an electronic device is protected by attorney client privilege or confidentiality, in which case the officer should consult the local CBP Counsel or the U.S. Attorney’s Office before proceeding with the examination.
Travelers have the right to submit an inquiry or complaint about a search via the Department of Homeland Security Travel Redress Inquiry Program (TRIP): https://www.dhs.gov/dhs-trip.
Conclusion
International travelers should be mindful of the content residing on their electronic devices before arrival in the United States and be prepared to respond to a CBP officer in a courteous but firm manner related to their rights, if the officer requests to conduct an inspection of their device.
Please contact any member of our Immigration Practice Group if you have any questions.