In short, they can pretty much search whatever they want. You can certainly refuse any search but the officer may not admit you and/or the officer may also detain or seize the device. Because the CBP officers at the border enforce the law at the U.S. border and protect border security they do not have to have a warrant to search your devices and for the basic search (see below), the officer does not even have to have a reasonable suspicion to be able to search your electronic devices. One rationale is that the CBP officers at the border help detect evidence relating to terrorism and other national security concerns, smuggling, contraband and child pornography.
What electronic devices can the officer search?
The officer at the border may search your computer, tablet, disks, drives, tapes, phone, and other communication devices, cameras, music and other players.
What is a basic search? Does the officer have to have a suspicion to perform a basic search?
No. When you go through border inspection, a CBP officer can conduct a basic search (even if he/she does not have a suspicion) Basic search may reveal information that would normally be visible by scrolling through your phone (your contact list, call logs, calendar, text messages, pictures, or videos). If the officer is satisfied, the device is returned to you and you are free to go.
What is an advanced search?
Advanced search is “any search in which an officer connects external equipment, through a wired or wireless connection, to an electronic device nor merely to gain access to the device, but to review, copy and/or analyze its contents.” Please note that the officer may copy the contents that are on your phone/computer and analyze them later. The officer has to have a reasonable suspicion of activity in violation of the law enforced and administered by CBP or where there is a national security concern. Please note that the officer must get a supervisor’s approval to perform an advanced search.
What is a reasonable suspicion? When can the officer have a reasonable suspicion?
For example, if there is a national security-related lookout in combination with other factors the officer may have a reasonable suspicion and perform an advanced search. Another example is if an individual’s name is on a government-operated and government-vetted terrorist watch list. The officer could also have a reasonable suspicion if you previously violated one of the laws CBP enforces and/or you do not have proper documents or visa.
Can the officer search my cloud?
Please note the officer may not intentionally use your phone or computer to access information that is only stored remotely (on cloud) – prior to the search, the officer must ensure that your device is not connected to any network (for example by placing it into airplane mode).
I am an attorney and I have privileged information in my electronic devices. What should I do?
If you are an attorney and you wish to assert the attorney-client privilege or attorney work product, you should specify the specific files, attorney and client names, file types, folders, categories of files, attorney or client names, email address, or phone numbers, or other specifications that may assist CBP to identify the privileged information.
Prior to any search, the officer will contact the CBP Counsel Office and in coordination with this office (which will coordinate with U.S. Attorney’s office if needed), the officer will ensure that any privileged material is segregated from the information that will be examined during search.
What if my phone and computer are password protected? Can the officer still access the information?
Yes. If your phone, computer or other electronic device is password protected, the officer may ask you to provide the password.
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