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Would I be refused entry if I refuse to comply with CBP phone or computer search? Do CBP need a search warrant to look through my devices?

By October 20, 2020April 30th, 2021Immigration
Courtesy of Pexels, labeled for reuse,

Although the state of the law regarding the extent of authority an immigration officer, “CBP officer” has to search electronic devices such as a cell phone or laptop is unclear and pending litigation in US courts, the short answer is yes, the CBP officer can search such devices and can deny your parents entry into the US if they do not consent to the search of their cell phones or computer laptops.

But I heard that a law enforcement officer is required to have a warrant to search a person’s personal belongings.

Although there are exemptions to the rule, you are correct that a law enforcement officer is required to possess a warrant to perform a search of a person’s property or belongings.  However, this general rule applies to searches within the US and does not apply to searches or encounters at airports and border checkpoints. At a border checkpoint, a CBP officer has broad authority to search any entering person’s personal belongings, including their cell phones and computer laptops.

Does that mean that their authority to search a cell phone or computer is limitless?

Not necessarily. There are some supposed limitations on how a CBP officer can conduct a search of a personal electronic device. A CBP’s authority is explained in their electronic device search directive from January of 2018 which you can view by clicking here. The directive basically explains that there are two levels of searches a CBP officer can perform when considering whether to search an electronic device. The first level of search does not require any manner of suspicion, and permits the officer to search anything contained within the device. The only limitation is that the officer cannot perform any searches that require the device to be connected online like performing a search within a cloud storage system. This search is known as a basic search.

If, during the course of the basic search and questioning, the officer encounters some information that raises what is called reasonable suspicion that there has been a violation of a law that CBP has authority to administer or enforce, or the officer believes there is a national security concern, the officer now has authority to perform a more detailed search and review of the device, which includes the ability to connect the device online to search all programs and data in the device and that is accessible online. This search is known as an advanced search.

So if my parents consent to the search then they should be ok and be allowed entry into the US?

Maybe, but the issue created by these searches of electronic devices is that CBP is allowed to give itself broad authority and discretion in how to perform these searches. This broad range of authority has resulted from CBP’s own interpretation of the limited regulations and laws that address those searches, federal court decisions upholding such authority, and a political climate that has explicitly and implicitly supported CBP’s broad authority under the justification that such authority is required for protection of US borders and their citizens.

Despite CBP implementing a set of policy guidelines, CBP appears to be inconsistently applying these guidelines where there have been reports of denials of entry of noncitizens for ambiguous reasons that are often not in conformance with their own guidelines. Furthermore, there is no clear effective process to challenge an officer’s determination. The one clear option to challenge such determination – through court litigation – is often an option that a noncitizen has little to no incentive to pursue. Usually a noncitizen without permanent status would likely not have the time to pursue the option because he would have already been returned to his country. Unless the affected individual is a US citizen or legal permanent resident, or a noncitizen with substantial resources who finds himself  greatly affected by the search,  the significant potential cost and time required to fully pursue such a case in court, especially if returned to the country of origin, is usually not worth the trouble.

Would my husband (who is a US citizen) or myself (an LPR) be subject to an electronic device search if we travel?

Yes, anyone entering the US from abroad may be subject to search of their cell phone or computer laptop, including US citizens and legal permanent residents.

So what would happen if my husband or I decide to not consent to such a search? Will we be denied entry into the US?

No, the CBP officer cannot deny you or your husband entry because you don’t consent to the search. However, what they can and likely will do is detain you and your husband and pressure both of you to cooperate. If you don’t cooperate then they will release you, but take your device to search it and eventually return it you days if not weeks after they complete the search.

You mentioned that this search issue is in litigation, so does that mean that there can be changes regarding these search policies in the future?

Possibly, but it is too early to tell. There have been appellate court decisions out of the Fourth Circuit and Ninth Circuit court of appeals that decided that CBP officers are required to have reasonable suspicion before they can proceed to an advanced search of an electronic device. With respect to basic searches, the courts seem to allow for searches without any suspicion although there was a recent federal district court decision requiring a CBP officer to have reasonable suspicion of digital contraband on a device before performing a search. This decision is currently being appealed before a higher appellate court. So with the federal courts, judges seem to be slowly trending to requiring some level of suspicion for a CBP officer to conduct a search of digital device, but the state of the law is still at best unclear and inconsistent across the US. Furthermore, CBP has not confirmed that they are changing their current policies based on these recent court rulings. To be safe, it is best to assume for now that anyone is subject to a search by a CBP officer when entering the US through a border checkpoint or airport without any real basis.

Is there anything we can do to avoid having my personal electronic device searched?

The bottom line: don’t take a device with you on your trip to the US with any sensitive data, including information that may be considered controversial or offensive to US interests, even if such information was erased from your device. You may also want to consider taking no device and acquiring needed devices after you enter the US. If you take your own device and think that you can erase any sensitive or controversial data or access to social media, understand that there may be forensic technology that can allow CBP to find this supposedly deleted data.

If CBP follows its own policies, then taking your own device is safe as long as there is no sensitive or controversial data on it that would justify CBP connecting online to view social media or cloud-based accounts. However, as we have discussed, the problem is that today it is not clear if CBP is following these policies, and there is little to enforce that CBP adhere to their own policies. CBP reports that these kinds of searches occur in a small percentage of cases. However, even if this were true, the trend has increased significantly and, despite CBP policy, there is no guarantee of what they will look at and, worse of all, how they will interpret information. This potentially makes it an issue when, in reality, such data or posting was really harmless and innocent. As a result, you can’t really trust what CBP officers will do or how they will interpret information and data on your device. As a result, as inconvenient as this sounds, as previously stated, you may want to consider traveling to the US with no device or with a new device with little to no sensitive or controversial data.

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