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Guest Author

If you plan on crossing the border with an electronic device, it’s important to know your rights and to take precautions to keep your information safe. U.S. Customs and Border Protection (“CBP”) officers have far greater ability to conduct searches at the border than they would inside of the U.S. CBP can search the contents of your electronic devices like phones, tablets, cameras, and laptops without probable cause that you are doing something wrong, and without your permission.

In practice, only a very small percentage of those who cross the U.S. border have their electronic devices searched. In 2017, only about 0.007% of travelers crossing into the U.S. had their electronic devices searched, which comes out to about 29,000 travelers out of approximately 397 million. Most electronic device searches occur upon entry into the U.S., but searches can be conducted upon exit of the U.S. as well or in the U.S. within 100 miles of the border.

Given the small percentage of searches that occur at the border, it is unlikely that your electronic devices will be searched.  But given the possibility, it is best to be prepared and take steps to preserve the privacy of your information.  CBP’s directive governing border searches of electronic devices is publicly available. Here are some of the key takeaways from the policy:

  • Officers can search the information stored on an electronic device during an inspection.
  • Officers cannot intentionally use the device to access information stored remotely (e.g. information in the cloud).
  • Officers can detain electronic devices if passcodes or encryption prevent them from inspecting the devices. According to CBP, devices ordinarily should not be detained for more than 5 days. However, there have been some reports of devices being kept for much longer.
  • Officers must separate out information that is protected by attorney-client privilege and follow special procedures to preserve confidentiality but are not barred from accessing that material. The directive also provides heightened protection for confidential information like medical records and journalist’s work product.

In light of this, here are some options to keep your information private when traveling to the border:

  • Leave electronic devices at home. If you don’t need your laptop or tablet on a trip, just don’t bring it.
  • If you have access to loaner devices that can be wiped before a trip, bring those devices instead of your personal devices.
  • If you have confidential or private information on your personal phone, bring a temporary “burner” phone. Not only does it keep your data safe, it’s a great way to feel like a spy for a day.
  • If you’re going to bring electronic devices with you, move all confidential information into the cloud and then disconnect the device’s capabilities for remote access. You can do this by putting your phone in airplane mode and by disabling the wireless capabilities on your laptop.
  • If asked to unlock your device for inspection, unlock the device yourself rather than divulging a password. This gives you more control of your device in case of future searches.
  • If you have privileged information on your phone, let the officer conducting the search know so they can use the appropriate procedures to give your privileged information greater protection.

For more information on this and other immigration law related questions, you can go to the Harter Secrest & Emery LLP website, or reach out directly to Glenn Schieck (585-231-1326 or GSchieck@hselaw.com).

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