Your US Border Rights: Can they search my phone?

US Immigration Attorney Dublin

Can they search my phone?

US Customs and Border Protection (CBP) policies

The Short Answer: Yes, CBP does have the right to search your cell phone, tablet and/or laptop. Information on your electronic device can be used to deny your entry into the United States. For example, if you are traveling in under ESTA, also known as Visa Waiver and say to the CBP officer that you are visiting friends or family, they have the option of looking at your cell phone to make sure this is true. If upon review of your electronic device the officer finds emails, text message etc. discussing a job interview you have booked then; CBP may deny your entry into the United States based on these findings. Furthermore, On January 4, 2018, United States Customs and Border Protection updated its official policy on border searches of electronic devices.  The new policy directive issued thus supersedes CBP’s prior policy directive, which was issued on August 20, 2009.   The New Directive addresses some, but not all, of the issues that arise in relation to border searches of electronic devices.
The details: US Immigration Airport/CBP employees have been conducting or overseeing the search of electronic devices. A CBP directive dating back to 2009 details that “border search of electronic devices containing information” must be exercised carefully. This original policy was updated on the 4th of January 2018. Amendments to the Prior Directive are as follows.

Basic v. Advanced Searches

The Prior Directive did not make a distinction between a “standard search” of an electronic device and a more detailed juridical search. The prior directive also maintained the position that CBP officers could perform all searches without any specific suspicion that the person who possessed the device was involved in a crime.

The New Directive now makes a distinction between two different types of searches:

  1. The first type of search is classified as an “advanced search”  this type of search is defined as “any search in which an Officer connects external equipment, through a wired or wireless connection, to an electronic device not merely to gain access to the device, but to review, copy, and/or analyze its contents.” This type of search is performed (with supervisory approval) when a CBP officer has a reasonable suspicion of an activity that violates laws enforced or administered by United States Customs and Border Protection, or there is a national security concern.
  2. The second type of search is classified as a “basic search” which is  defined as “any border search of an electronic device that is not an advanced search.”  During the course of a basic search, a CBP officer may, without having any specific suspicion, examine an electronic device and may review and analyze information encountered during the examination. This includes information that is resident on the device and would ordinarily be visible by scrolling through the phone manually (including but not limited to things like your contact lists, call logs, calendar entries, text messages, Facebook/Twitter posts,  pictures, videos, and audio files saved on your device etc).

 

Handling of Passcode-Protected or Encrypted Information

The Prior Directive did not specifically address US Immigration (specifically United States Customs and Border Protection’s) handling of passcode-protected or encrypted information. The New Directive now states that a CBP officer may request the traveler’s assistance in presenting electronic devices, and information contained therein, in a condition that allows inspection of the device and its contents. Therefore your password (passcode) or other means of access may be requested and retained as needed to expedite the examination of your electronic device or devices (and their contents).

If the CBP officer is unable to complete an inspection of an electronic device because it is protected by a passcode or encryption, the officer may detain the device pending a determination as to its admissibility, exclusion, or other disposition. The New Directive makes clear that it does not limit CBP’s ability to seek technical assistance, to use external equipment, or take other reasonable measures to render a device in a condition that allows for inspection of the device and its contents. However, supervisory approval is required in order to retain an electronic device, or copies of information contained therein, beyond an individual’s departure from the port.

A CBP officer may detain an electronic device, or copies of information contained within, for a “brief, reasonable period of time” to perform a thorough border search “as expeditiously as possible.” Unless “extenuating circumstances” exist, the detention of devices ordinarily should not exceed five days. However, nothing precludes  CBP from detaining an electronic device for a much longer period by claiming that “extenuating circumstances” exist.

Keep in mind these rules also apply to travel into the USA from preclearance locations such as Dublin and Shannon Airport. We are noticing many more people contacting our office since the Trump administration has further empowered CBP to ask more probing questions and to make more comprehensive searches.

Unsure of your rights or looking for more specific details?

If you are planning to enter the US and are not sure what rights you have at the US Border, then it is prudent to contact our office ASAP and speak with a US Immigration attorney about your legal rights when entering the USA. Our the Law Office’s of Caro Kinsella Dublin has attorneys will provide you detailed advice, answer your specific questions, provide you with options and strategize on how to best proceed.