United States: Searches of Devices at the U.S. Border

Last Updated: March 29 2017
Article by Dawn M. Lurie and Leon Rodriguez

Seyfarth Synopsis: Although longstanding policy of U.S. Customs and Border Protection authorizes searches of electronic devices in the possession of travelers arriving in the United States, recent reports of such searches have heightened businesses' concerns when their employees travel.  In the event of such a search, this guidance informs employees about what they can expect, and provides employers with recommendations to ensure against loss, corruption or misuse of company information

Overview:  United States' Customs laws and regulations (See, 8 U.S.C. § 1582, 19 C.F.R § 162.6) authorize customs officers to inspect, search and/or detain any person, baggage, and/or merchandise arriving in, and or departing from, the United States. This authority extends to inspections, searches and temporary detentions of electronic devices possessed by travelers, including mobile telephones, tablets, and laptop computers.  Increasingly searches are becoming more common, and employees traveling with company data and/or information should carry this guidance when returning from foreign travel.  "Supreme Court decisions have upheld the doctrine that CBP's search authority is unique and does not violate the fourth amendment's protection against unreasonable searches and seizures."[1] This exception allows CBP to conduct "routine" searches on luggage, devices, vehicles or persons without a warrant. "However, with this authority, CBP expects all of its officers to conduct their duties in a professional manner, and treat each traveler respectfully."[2]

Who May Be Chosen for an Inspection: United States Customs and Border Protection ("CBP") guidance states that a variety of circumstances can lead agents to select a traveler for inspection, search and/or detention of electronic devices, including: travelers holding incomplete travel documents or lacking proper documents and/or visa; travelers who have previously violated a law that CBP enforces; travelers with a name that matches a person of interest in government enforcement databases; and/or travelers randomly selected for such a search.  Selection for a search does not necessarily mean that CBP believes that you have done something wrong. A 2012 CBP Directive noted that "in the course of a border search, with or without individualized suspicion, an Officer may examine electronic devices and may review and analyze the information encountered at the border".

At this time, CBP has not articulated policies that consider a traveler's nationality as a factor supporting a search; however, not all criteria applied by CBP have been made public. CBP has also not disclosed whether travel to certain countries could draw scrutiny. There have been reports of foreign visitors as well as United States citizens being subjected to inspections.

What Will Occur During the Search The manner in which a search is conducted may vary widely depending on a number of factors.  A customs official may simply conduct a search through the device and then return it to you.  At the other times, CBP may elect to take temporary custody ('detention') of the device for further examination.  If CBP decides to detain your electronic devices, the customs officer will issue you a written receipt (Form 6051-D), which will detail what items are being detained, who at CBP will be your point of contact, and your own contact information in order to facilitate return of the items within a reasonable time.  After CBP has concluded inspecting your device, they will contact you to come retrieve the device. If you are unable to retrieve the device in person, CBP will provide instructions to have the device shipped to you at your expense. In some cases, devices could be turned over to Immigration and Customs Enforcement who also have border search authority. 

What You Should Do During the Search:  Generally speaking, a traveler has the right to remain in the room unless there are national security, law enforcement or other considerations that would make it inappropriate to allow individuals to observe the review. It is important that you cooperate with the Officer by providing the device to the official and logging in or providing password information where requested. Failure to cooperate in the search may result in either seizure or extended detention of the device, and in the case of certain non-citizens could result in denial of entry into the United States. How your employee handles a border entry may be driven by his or her citizenship status. In summary, U.S. citizens may be delayed but will be granted entry, lawful permanent residents should plan on a high level of scrutiny and non- citizens could be barred from entry.

What You Should Do If Your Device Contains Privileged or Sensitive Material:  While we recommend that travelers cooperate with CBP, it is critical that you communicate to the Officer the presence of any privileged or sensitive material. This data should be "passphrase" protected and the appropriate encryption tools should be implemented.

Privileged. Keep in mind confidential privileged legal materials are not necessarily exempt from CBP access and review; however, they may be subject to special handling as follows: "If an Officer suspects that the content of such a material may constitute evidence of a crime or otherwise pertain to a determination within the jurisdiction of CBP, the Officer must seek advice from the CBP Associate/Assistant Chief Counsel before conducting a search of the material, and this consultation shall be noted in appropriate CBP systems of records. CBP counsel will coordinate with the U.S. Attorney's Office as appropriate."[3] In other words CBP may choose not to inspect, but in the event they determine a review is pertinent the Agent should follow the procedure seeking internal legal advice. 

Sensitive. According to the CPB field directive Officers are instructed as follows: "Other possibly sensitive information, such as medical records and work-related information carried by journalists, shall be handled in accordance with any applicable federal law and CBP policy. Questions regarding the review of these materials shall be directed to the CBP Associate/Assistant Chief Counsel, and this consultation shall be noted in appropriate CBP systems of records."[4]

Invoking a privilege or requesting a sensitive review has implications from a practical perspective. If you plan to take this route, you should consider entering the U.S. during normal business hours, carrying a copy of this CBP Directive (and ensuring that the directive remains applicable under the current administration), and consider the likely delay and the effect on connecting flights.

What You Should Do to Protect Data/Information Belonging to an Employer: CBP policy directs officials conducting searches and/or inspections of electronic devices containing "business or commercial information" to "treat such information as business confidential information and . . . take all reasonable measures to protect that information from unauthorized disclosure."  Nonetheless, customs searches entail certain risks necessitating safeguards on the part of the traveling employee.

Some tips to consider:

  • Whenever possible, employees should take safeguards to avoid loss or destruction of files or data by backing up such files or data onto company servers or into a secure cloud based account.
  • To the extent possible devices should be both electronically and physically labelled as belonging to the company.
  • Files that contain confidential or propriety information should be marked as such both within the document and in the file name of the document and should appropriately encrypted.
  • Have employees use strong encrypted passwords and shut down devices during border crossings (this is to ensure that devices are not hacked).
  • Consider traveling with an empty device (employees can work from their cloud account during the trip).
  • Consider traveling with an inexpensive laptop storing only critical information.
  • Consider traveling with a "temporary", inexpensive phone for work and leave the smart phone at home.

What if You Believe that You Have Been Mistreated, Harassed or Are Repeatedly Selected For Device Searches

If still in the customs area, you can request to speak with an onsite supervisor. Additionally, travelers who are concerned that they have been incorrectly selected for enhanced screening, particularly if on a repeated basis can seek assistance from the  Traveler Redress Inquiry Program.  Additionally, travelers can contact the Department of Homeland Security Office of Civil Rights and Civil Liberties.

Footnotes

[1]

United States.. Customs and Border Protection < https://help.cbp.gov/app/answers/detail/a_id/176/~/cbp-search-authority.>

[2] Id.

[3] Id at 5.2.1 page 3

[4] Id. at 5.2.2 page 3

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Dawn M. Lurie
Similar Articles
Relevancy Powered by MondaqAI
Ogletree, Deakins, Nash, Smoak & Stewart
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Ogletree, Deakins, Nash, Smoak & Stewart
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions