Can U.S. Border Officials Search My Phone or Other Electronic Device?

Your right to privacy, even when it comes to what's in your digital devices, is greatly reduced when entering or reentering the U.S. after foreign travel.

Travelers to the United States, as well as returning residents and citizens, are typically accustomed to the idea that U.S. Customs and Border Protection (CBP) officials will ask them various questions and possibly search their luggage or their persons. The object is, broadly speaking, to check on the person's identity and documented right to enter the U.S., and to make sure that the person isn't carrying any forbidden objects or contraband. But does this right include searching the contents of the person's smartphone, tablet, laptop, or other electronic or digital device?

Numerous news reports indicate that CBP officials have been demanding and searching these objects (and the passwords thereto), in an increasing number of cases involving U.S. citizens as well as other travelers.

As anyone who owns a smartphone or the like knows, one's entire life--friends, contacts, email communications, purchases, revelations on social networks, jobs and other affiliations, and so forth--can be found within these small versions of a computer. So the question becomes, do such things merit higher privacy protection in the context of entry to the United States?

Do People Entering the U.S. Have Privacy Rights?

Entry to the U.S. from destinations around the world is, under U.S. law, considered to be a unique situation, with national security implications. On this basis, the U.S. Supreme Court held in 1977 that the usual Fourth Amendment requirement that officers have probable cause or a search warrant before conducting a search is lifted in this context.

The case in question, United States v. Ramsey, 431 U.S. 606 (1977), actually referred to a situation regarding incoming mail; but it is considered to apply to searches of people as well, by virtue of the Court's broad language stating:

". . . searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border . . ."

As the Court also mentioned, there exists a:

"constitutionally authorized right of customs officials to search incoming persons and goods, but . . . no statutorily created expectation of privacy."

Are Privacy Rights Any Higher For Phones and Other Electronic Devices?

Because this situation is new, no clear answer yet exists to the question of whether legal limits can be drawn on CBP's access to information contained in one's electronic devices.

This certainly isn't a matter where travelers can simply assert some legal right to privacy and refuse access. Such an approach is likely to result in either refusal of U.S. entry or, in the case of the U.S. citizens, admission to the U.S. accompanied by temporary seizure of one's electronic device for further scrutiny at a later time.

A 2013 case out of the Ninth Circuit offers a possible standard for limiting such searches. In United States v. Cotterman, the court stated that border agents need at least a reasonable suspicion of criminal activity before conducting a forensic search of a laptop seized at the U.S. border, given that a laptop’s contents are highly personal and forensic searches are so painstaking.

The Ninth Circuit court offered language that should be helpful to any further litigants in cases of cross-border searches, drawing on Constitutional principles, and saying that:

"The nature of the contents of electronic devices differs from that of luggage as well. Laptop computers, iPads and the like 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.” U.S. Const. amend. IV. The express listing of papers “reflects the Founders’ deep concern with safeguarding the privacy of thoughts and ideas—what we might call freedom of conscience—from invasion by the government.”

It will no doubt take other cases going through the court system before this theory is tested nationwide, however. And even in the Ninth Circuit, future litigation is likely as entrants test what might be considered a "reasonable suspicion of criminal activity."

Where Does That Leave Travelers to the U.S.?

Unless you want to be the subject of the next case to wind its way up through the federal court system, it seems that complying with instructions to view or surrender your electronic devices is a necessity for now. If you're in one of the Ninth Circuit states, at least push back on the reason for suspicion of criminal activity.

If your device is taken from you, take down as much information as you can about the CBP officer who takes it so that you can follow up with regard to getting it back.

You might also consider applying for a program that eases U.S. entry, such as Global Entry or NEXUS.

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