Border searches of mobile devices on the rise

Searches of cell phones, laptops and other electronic devices at the U.S. border have risen sharply, and travelers should be aware of border procedures and the potential for their electronic devices to be searched or confiscated when entering or exiting the country.

According to recent figures from U.S. Customs and Border Protection, in the first six months of the current fiscal year, nearly 15,000 searches were conducted. In the previous fiscal year, CBP conducted 30,200 border searches of electronic devices, compared with 19,051 in FY 2016 and 8,500 in FY 2015. In January, the agency issued new guidelines and operating procedures on border searches of electronic devices for inbound and outbound travelers.

Summary of CBP guidelines:

• Travelers may be asked to unlock their devices by providing their passcode or other encryption mechanism to allow officers to inspect it.
• Border searches may only include information residing on the device and accessible through its operating system or its software, tools, or applications. Border officers may not intentionally access information that is stored remotely. To avoid accessing information stored on the cloud, they will ask the traveler to disable connectivity, such as putting it in airplane mode.
• The procedures distinguish between a “basic search” and an “advanced search.” In a basic search, border officers may examine an electronic device, and review and analyze information encountered at the border. In an advanced search, officers connect external equipment to the traveler’s device to access the device and copy its contents.
• A basic search can be performed even if officers lack any suspicion of criminal activity. To perform an advanced search, officers must have a reasonable suspicion of criminal violations or national security concerns, and the search must be approved by a CBP supervisor.
• Electronic devices may be confiscated as part of an “advanced search” to be searched on-site or off-site for up to five days, or longer if an extension is approved by a CBP manager.
• If officers encounter business or commercial information on electronic devices, they will treat it as business confidential information and will protect it from unauthorized disclosure; other federal laws may restrict the handling of the information.
• Specific procedures are outlined for information on devices that the traveler asserts is covered by the attorney-client privilege, including involvement of the CBP attorneys and segregation of the information.

The full guidelines may be read here.

Legal challenges to these searches are beginning to reach the courts. While searches conducted at U.S. borders usually do not require a warrant under a recognized exception to the warrant requirement, searches of digital devices are raising new issues about the scope of the exception and the privacy rights in the wealth of personal information contained on digital devices.

In a recent appellate case, the U.S. Court of Appeals for the Fourth Circuit held that border officers did not require a warrant to seize a Turkish national’s phone, even though the traveler was exiting the U.S. and the phone was sent four miles away to a forensic lab to have its contents downloaded. The search was a “nonroutine” border search, and while it did not require a warrant or a showing of probable cause, it required that border officials have an individualized suspicion of criminal activity. The court was careful to note that the search did not involve information stored on the cloud. The case is U.S. v. Kolsuz, and the decision can be viewed here.

Earlier this month, a U.S. District Court in Massachusetts ruled that a lawsuit could move forward challenging the government’s use of warrantless searches at the border. The suit was brought by 10 U.S. citizens and one lawful permanent resident whose devices were searched upon re-entering the country. Two of the plaintiffs’ phones were seized for months. In rejecting the government’s attempt to dismiss the case, the court said the plaintiffs made out a plausible claim that their Fourth Amendment rights against unreasonable search and seizure and First Amendment rights to privacy were violated. The case is Alasaad v. Duke, U.S. Dist. Ct. for the District of Massachusetts, CA No. 1:17-CV-11730.

BAL Analysis: All international travelers regardless of nationality should be aware of the potential for their devices to be searched upon entry or exit and plan accordingly. Business travelers using company devices may wish to take precautions before traveling, such as limiting the devices they bring, moving data onto the cloud and deleting sensitive information from their devices before travel.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

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