Published on 8/16/2018

Earlier this year, U.S. Customs and Border Protection (CBP) issued a new directive titled, Border Search of Electronic Devices. According to DHS Secretary Kirstjen Nielsen, CBP officers at a U.S. port of entry (including a land border crossing or airport) can demand a password to open your phone, without probable cause. The individual crossing the border also has the right to refuse to do so. However, refusal may result in devices being seized or detained by the CBP. The CBP officer may delay travel or even deny entry if the individual is not a U.S. citizen.

Although CBP officers may search data that is apparent on the phone, this directive does not give them the right to access information or files stored remotely. However, depending on the individual, an officer may judge it necessary for national security purposes, such as cases where the individual is on a watch list, to connect a phone to a hard drive, then copy its contents for analysis.

We advise our clients to delete private material or transfer it to the cloud before crossing the border.  At the border, we recommend turning on airplane mode for your phone in order to limit access. Finally, border agents cannot stop U.S. citizens from entering the country, even if they refuse to unlock their device or provide the password. However, agents may escalate the encounter if the U.S. citizen refuses to comply. For instance, CBP agents may seize your devices, ask you intrusive questions, search your bags more intensively, or increase by many hours the length of detention. If a foreign visitor doesn’t comply, CBP officers may deny them entry into the U.S.

Marsha Mavunkel can be reached at [email protected].
Cody Nunn can be reached at [email protected].
Amy Royalty can be reached at [email protected].
Janet Cheetham can be reached at [email protected].
Joel Paget can be reached at [email protected].
Jen Chen can be reached at [email protected].