U.S. Customs and Border Protection Agents Can Search Your Cell Phone and Other Devices Anytime They Want

Fourth Amendment protections against unlawful searches and seizures do not apply at the border (this includes “functional borders” in the interior of the country).  U.S. Customs and Border Protection (“CBP”) officers can search travelers without any level of suspicion.  They have the legal authority to go through any object crossing the border within 100 miles, including smartphones and laptops, whether they contain confidential or not, and whether or not you give consent.  CBP is the largest federal law enforcement agency of the United States Department of Homeland Security (“DHS”), and it has the right to take devices away from travelers for five days without providing justification.  In the absence of probable cause, however, federal agents are required to return the devices.  A CBP officer’s border search authority is derived from federal statutes and regulations, including 19 C.F.R. 162.6, which states that, “All persons, baggage and merchandise arriving in the Customs territory of the United States from places outside thereof are liable to inspection by a CBP officer.”  Unless exempt by diplomatic status, all persons entering the United States, including U.S. citizens, are subject to examination and search by CBP officers.

As many travelers are finding out, our privacy rights at the border are almost non-existent.  CBP agents have broad authority to search citizens and visitors entering the United States, whether at an international airport, border crossing (also called “port of entry”), or even if just passing through a “functional border” up to 100 miles from the actual border.  And that can include “flipping through cell phones, computers, and any other electronic devices.”[1]  “Between October 2008 and June 2010, over 6,500 people crossing a U.S. border had their electronic devices searched.”[2]  Almost half were American citizens.  Since then searches of cellphones by border agents have exploded, growing fivefold in just one year, from fewer than 5,000 in 2015 to nearly 25,000 in 2016.  In February 2017 alone, “five-thousand devices were searched, more than in all of 2015.”[3]  Interestingly, what CBP agents call “detaining” cellphones didn’t start with the election of Donald Trump. Rather, “the practice began a decade ago, late in the George W. Bush administration,”[4] but the practice was highly focused on specific individuals.  The searches and seizures nowadays are far more overreaching and intrusive, and at times confrontational.  Federal agents now have the technological capability to forensically “extract contact lists, travel patterns and other data from mobile devices very quickly,”[5] regardless of password protection on most Apple and Android phones.  They can also “access deleted call logs, videos, photos, and emails to name a few, in addition to the Twitter, Facebook, and Instagram apps.”[6]  The Fourth Amendment was created to protect against unreasonable searches and seizures, but the government has somehow absconded with this right and what we are left with hardly resembles the Fourth Amendment at all.  Indeed, the Supreme Court decided in 1976 that people have fewer claims to their constitutionally-protected Fourth Amendment privacy rights when entering the country, because the government has to protect its borders.  This national security need to protect our borders has given CBP wide latitude on how and where it conducts its searches.

For decades CBP has had the “authority to operate within 100 miles of any U.S. ‘external boundary.’”[7]  “That ‘Border Zone’ distance was defined by federal regulations in 1953 as ‘100 air miles’ from any external boundary, including coastal boundaries.”[8]  This means that “roughly two-thirds of the U.S. population lives within the 100-mile zone.”[9]  This equates to about 200 million people whose Fourth Amendment rights have the potential to be abridged, directly or indirectly.

In a 1976 U.S. Supreme Court decision regarding Fourth Amendment rights at the border, the Supreme Court held that immigration checkpoints were permissible only insofar as they involve a “brief detention of travelers” during which all that is required of the vehicle’s occupants is “a response to a brief question or two and possibly the production of a document evidencing a right to be in the U.S. United States v. Martinez-Fuerte, 428 U.S. 543 (1976)  In practice, however, “motorists at border crossings and roadside checkpoints, including local residents on their way to work or school, are often subjected to extended detentions, interrogations unrelated to citizenship, invasive searches, racial profiling, verbal harassment, and physical assault by agents, among other rights violations.”[10]  The late Senator Patrick Leahy (D-VT) recalled how Border Patrol agents stopped him 125 miles south of the U.S.-Canadian border.  When Mr. Leahy asked “what authority the agent had to detain him, the agent pointed to his gun and said, ‘That’s all the authority I need.”[11]  Rather crude, but a highly persuasive method for obtaining consent to conduct a search at a functional border.  There are approximately 128 roadside checkpoints nationwide, the majority of them in the Southwest border. The stated primary purpose of these inspection stations is to deter illegal immigration and smuggling activities, but as often happens, CBP search and seizure tactics end up trampling upon the privacy rights of innocent bystanders.

On January 1, 2017, a Buffalo, NY couple, Akram Shibly and Kelly McCormick, was detained for two hours when returning to the U.S. from a trip to Toronto, during which time CBP officers “took their cellphones and demanded their passwords.”[12]  The couple complied and were subsequently allowed to enter the U.S.  The couple was detained three days later, after returning from another trip to Canada.  This time they refused to give up their cellphones for inspection, prompting the CBP officers to chokehold Mr. Shibly into submission.  After seizing the couple’s cellphones the agents demanded their passwords [again].  CBP eventually set the couple free and returned their cellphones.  In October 2016, CBP airport agents denied Canadian photojournalist Ed Ou entry into the U.S. “after detaining him for over six hours and seizing his three cell phones.”[13]  As with the Canadian couple, his cell phone was eventually returned and he was permitted to enter the U.S.  Similarly, in July 2016, CBP airport agents detained U.S. citizen and Wall Street Journal reporter Maria Abi-Habib for an hour and a half after refusing to give up her cellphones for inspection.  She referred the agents to the newspaper’s lawyers and she was eventually released without seizing or searching her devices.  The Fourth Amendment right against unreasonable searches and seizures is not supposed to be negotiable, but the CBP has diminished this protective right in the name of national security.  The bottom line is that CBP can now confiscate your cell phone and search through your personal email and social media because they are acting under the premise of national security.

The unsettling fact is that border officials have long had broad powers to conduct warrantless searches and seizures, but many people just don’t know about them.  Our Fourth Amendment rights are greatly diminished at ports of entry and functional borders within the Border Zone, as CBP officials have search powers that extend 100 air miles inland from any external boundary of the U.S.  But staying informed and remaining calm during border detentions and interrogations may, for the moment, be the most effective tool in protecting your privacy rights.

 

Does CBP’s search authority cover electronic devices like smartphones and laptops?

Yes.  CBP’s mission is to protect the U.S. borders by conducting random searches of vehicles, personal belongings, persons.  That includes going through your phones, computers, and any other electronic devices you may be carrying with you at the time.  Additionally, if those devices have access to your personal social media, they can search through those as well.  These searches can occur with or without specific suspicion that the person who possesses the items is involved in a crime.

 

Can I refuse to give them my cellphone or electronic device?

Yes.  You can refuse to give up your cellphone or electronic device, however, doing so will jeopardize your entry into the U.S. if you’re a green card holder or visitor.  There is no set rule on when the CBP has to return your cellphone or devices, but with the broad authority given to the CBP, they can confiscate the cellphone and extract the information.  So, if you have nothing to hide, even if you object to the violation of your privacy rights, it may be better just to give up your cell phone for inspection to avoid further unnecessary delays or refused entry.

If you are a non citizen, border agents can refuse your entry to the U.S. if they deem you uncooperative, even if you are not a terrorist or hiding any information in your cellphone, or attempting to smuggle in information.  The absence of suspicion will not deter federal agents from conducting a search of your personal effects or person.  You will need to decide whether they’re willing to endure those inconveniences when they’re deciding whether to give their password or whether you want to risk being denied entry and turned away at the border for refusing to comply.

 

Am I legally required to disclose the password for my electronic device or social media, if CBP asks for it?

This remains a grey area, but in reality CBP has the authority to confiscate your cellphone or electronic devices and extract the information.  The bottom line is that CBP can now confiscate your cell phone and search through your personal email and social media because they are acting under the premise of national security.  Until the U.S. Supreme Court issues a bright line rule stating a clear limitation or expansion of the CBP’s right to conduct searches and seizures, CBP will continue to conduct warrantless searches at borders and functional borders (roadside checkpoints).

 

Can I claim to have confidential files on my cellphone or electronic device?

In general, there is no guarantee that federal agents will recognize the claim to privileged and confidential information.  For now, CBP has recognized that lawyers, in particular, have attorney-client privilege and that agents have to get approval from an agency attorney before proceeding with the search.  In the absence of any privilege, CBP can still search your phone.

 

What is some practical advice for protecting my digital information?

Consider which devices you absolutely need to travel with, and which ones you can leave at home. Setting a strong password and encrypting your devices are helpful in protecting your data, but there’s no guarantee your information will be safe from forensic extraction.  There is always the possibility you may lose access to your devices for undefined periods should border officials decide to seize and examine their contents.

 

Does CBP recognize any exceptions to what it can examine on electronic devices?

Yes, within limits.  CBP can search legal documents, attorney work product or information protected by attorney-client privilege, but there are protocols to follow.  Once the issue is raised, the border official must consult the CBP associate/assistant chief counsel before undertaking the search.

 

Am I entitled to a lawyer if I’m detained for further questioning by CBP?

No.  CBP’s primary mission is preventing illegal entry and human smuggling, also preventing terrorists and terrorist weapons from entering the United States. Travelers are subject to search and seizure of their personal belongings and are not entitled to representation during CBP administrative processing.  CBP provides security and facilitation operations at 328 ports of entry throughout the country.

 

Where can CBP set up checkpoints?

CBP has wide latitude on where to set up functional borders, so long as they fall within the 100 border zone.  Currently, there are approximately 128 roadside checkpoints nationwide, the majority of them in the Southwest border.

CBP can even set up a check point at the airport, particularly when you fly out of an airport in the southwestern border, such as McAllen, Brownsville or El Paso.  Here, CBP agents can stand alongside TSA when they’re doing the checks for security.  It’s less likely in northern borders.

 

 

[1] Harrington, Rebecca. “Federal agents can search your phone at the US border — here’s how to protect your personal information,” Business Insider-Politics, March 14, 2017, available at http://www.businessinsider.com/can-us-border-agents-search-your-phone-at-the-airport-2017-2.

[2] See “Government Data About Searches of International Travelers’ Laptops and Personal Electronic Devices,” available at https://www.aclu.org/government-data-about-searches-international-travelers-laptops-and-personal-electronic-devices.

[3] McFadden, Cynthia. “American Citizens: U.S. Border Agents Can Search Your Cellphone,” NBC News, U.S. News, March 13, 2017, available at http://www.nbcnews.com/news/us-news/american-citizens-u-s-border-agents-can-search-your-cellphone-n732746.

[4] Id.

[5] Id.

[6] Id.

[7] See “The Constitution In The 100-Mile Border Zone,” available at https://www.aclu.org/other/constitution-100-mile-border-zone.

[8] Sommerstein, David. “What Are Your Rights At A Border Patrol Checkpoint?” North County Public Radio (“NCPR”)-Regional News, June 10, 2015.

[9] See “The Constitution In The 100-Mile Border Zone”

[10] Id.

[11] Ramirez, Christian. “Moving the Line of Scrimmage: Re-Examining the Defense-In-Depth Strategy”

Submitted to the U.S. House of Representatives Border and Maritime Security Subcommittee of the

Homeland Security Committee,” Written Statement of The Southern Border Communities Coalition & The American Civil Liberties Union, Sept. 13, 2016.

[12] See “American Citizens: U.S. Border Agents Can Search Your Cellphone”

[13] Cope, Sophia. “Law Enforcement Uses Border Search Exception as Fourth Amendment Loophole,” Electronic Frontier Foundation-Defending Your Rights in the Digital World, Dec. 8, 2016, available at https://www.eff.org/deeplinks/2016/12/law-enforcement-uses-border-search-exception-fourth-amendment-loophole.