Can U.S. Border (CBP) Officials Legally Search a U.S. Citizen's Electronic Devices?

How much privacy can you expect when coming back to the the U.S. after international travel?

Whether you were born in the U.S., naturalized, or derived or acquired citizenship from U.S. citizen parents, your status as a U.S. citizen gives you important benefits when traveling. Your U.S. passport is a powerful document, giving you protection by the U.S. government when traveling and the right to be readmitted upon your return. You are likely accustomed to receiving the full scope of protections guaranteed by the U.S. Constitution when dealing with authorities at the U.S. borders and other ports of entry.

But how much privacy can you expect when coming back to the the U.S. after international travel? This is a question that is being asked by many lately, as media reports have surfaced about Customs and Border Protection (CBP) officials insisting that U.S. citizens not only undergo the normal questioning and possibly luggage search, but hand over their smartphones, iPads, tablets, laptops, and other electronic devices, along with the passwords thereto, for search and possibly longer-term seizure.

It's not just suspected criminals who have being asked for access. Among that cases making the news are an Apple employee and various journalists. Refusing to give CBP officials access to one's phone or other electronic device hasn't worked—entrants are likely to have an unpleasant encounter at a minimum, and possibly have their devices seized with an order to return at a later date.

This is a level of scrutiny that goes to one's very sense of privacy. Your whole personal life—what political party you support, who you're dating, what you buy online, and where you've been lately—is probably shown in the texts, emails, photos, and other sources of information that live on your digital devices.

Thus the question many U.S. citizens are asking is, don't I have some level of privacy protection when I'm merely coming back from a trip to, say, London or Hong Kong?

Does the U.S. Constitution Protect U.S. Citizen's Privacy?

Interestingly, there is no right to privacy explicitly set forth in the U.S. Constitution or federal law. Privacy is a relatively modern concept. The Supreme Court has, however, inferred the existence of a Constitutional right to privacy. Upon this basis, it has struck down laws that, for example, criminalized sodomy, contraceptive use, and abortion.

The more relevant Constitutional right when a U.S. citizen reenters the United States after international travel is the Fourth Amendment. This limits the power of federal and state law enforcement authorities to make arrests, search people and their property, and seize objects and contraband. They must, in situations where the person has a legitimate expectation of privacy, have a reasonable basis to conduct a search or must obtain a warrant after showing probable cause to conduct a search.

But even the Fourth Amendment won't necessarily cover you or any U.S. citizen when returning from a trip abroad. That's because entry to the United States is viewed as a unique set of circumstances, given its importance for national safety and security. The U.S. Supreme Court discussed this in a case called United States v. Ramsey, 431 U.S. 606 (1977), which basically said that all searches taking place at a U.S. border are reasonable and that the law doesn't give you any expectation of privacy there.

So Do U.S. Citizens Really Have to Hand Over Digital Devices?

A 2018 directive from CBP asserted that basic searches of electronic devices are part of the agency's "longstanding practice and are essential to enforcing the law at the U.S. border and to protecting border security." It also stated that CBP will "protect the rights of individuals against unreasonable search and seizure and ensure privacy protections." A basic search, according to this directive, is one in which no external equipment is hooked up to the device so as to review, copy, and or analyze its contents.

Federal courts in earlier years have said that: "Routine searches of the persons and effects of entrants [into the United States] are not subject to any requirement of reasonable suspicion, probable cause, or warrant." (United States v. Montoya de Hernandez, 473 U.S. 531, 538 (1985).)

As such, the CBP directive told its officers that they may examine information that resides on the device itself, and that's reachable through its operating system or other software, tools, or applications, but not through the cloud. That's why officers were directed to either ask that the traveler put the device into airplane mode or in some cases, do so themselves.

Significantly, the court in the Ninth Circuit regards situations concerning electronic devices as involving new legal territory. It held in a case called United States v. Cotterman that border agents need to at least have a reasonable suspicion of criminal activity before they search a laptop.

The court's reasoning pointed to the fact that a laptop's contents are highly personal and that such devices "are simultaneously offices and personal diaries. They contain the most intimate details of our lives: financial records, confidential business documents, medical records and private emails. This type of material implicates the Fourth Amendment’s specific guarantee of the people’s right to be secure in their 'papers.'"

More recently, the American Civil Liberties Union (ACLU) brought suit on behalf of eleven U.S. citizen and permanent resident travelers whose smartphones and laptops were searched without individualized suspicion at U.S. ports of entry. A federal district court in Boston ruled in late 2019 that such acts violated the Fourth Amendment, especially because there's nothing routine about CBP's so-called "basic" search, and contrary to its stated policy, the agency retained information gleaned from various of the entrants' electronic devices. (See ACLU page concerning Alasaad v. McAleenan.)

The court's holding is apparently nationwide in scope, but it didn't actually enjoin CBP's behavior and appeals are still possible. Thus the matter should not yet be considered settled.

Steps U.S. Citizens Can Take Before Departing the U.S.

Although it's not a total guarantee, applying for one of the programs that offers speedy U.S. entry, such as Global Entry or NEXUS, could help avoid difficult encounters with CBP.

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