United States: Border Searches Of Your Electronic Devices — What Rights Do You Have?

Last Updated: April 3 2017
Article by Punam Singh Rogers

The United States government has reported that border searches of electronic devices in the U.S. increased from 4,764 in 2015 to 23,877 in 2016. Because electronic devices have immense data storage capacity and can hold confidential information, trade secrets and data otherwise protected by attorney-client privilege, these searches have raised alarm for individuals, and the companies that employ them, when traveling. Adding social media and cloud storage into the mix, a few additional passwords from a device could unlock a multitude of data not even technically on the device itself.

The Trump Administration's new restriction on electronic devices may signal an increase in electronics searches at international ports of entry. On March 21, 2017, the Department of Homeland Security announced a new policy banning laptops, tablets, cameras, and other electronic devices bigger than cell phones from cabins in foreign airlines where the flight originated from the following airports: Cairo; Istanbul; Kuwait City; Doha, Qatar; Casablanca, Morocco; Amman, Jordan; Riyadh and Jeddah, Saudi Arabia; and Dubai and Abu Dhabi in United Arab Emirates. The carriers operating out of those airports have until Friday to comply. Devices stored in checked baggage are still subject to search by customs agents.

Although many details of the new policy remain unclear, we expect border officers will be even more likely to search the devices of travelers from these countries. Individuals planning to travel to the U.S. on flights governed by the new policy should expect at least routine electronics searches.

Here are key considerations for businesses and travelers to comply with travel policies and searches.

What Types of Searches Can Be Expected?

U.S. Customs and Border Protection (CBP) officers, Immigration and Customs Enforcement (ICE) officers and other federal customs agents have broad authority to conduct "routine" or "cursory" searches of your electronic devices without suspecting you of any criminal wrongdoing. At the border, like searches of a person's suitcase or even their body, an agent may conduct a search of an electronic device without any suspicion at all if the search is "routine."

Routine Searches

In general, a search of your electronic device will qualify as "routine" if the agent conducts the search in your presence over a relatively short amount of time using no more advanced technology to look through your data than his or her own hands, clicking or scrolling through your device the way an average user would.

Therefore, in a routine search, a CBP officer can physically inspect your electronic devices, which is no different from any other container when it comes to a physical search. A physical search of the device—even one removing the battery and looking through the devices cavities—will not require any level of suspicion.

Non-Routine Searches

Searches that are "non-routine" generally require "reasonable suspicion" of criminal wrongdoing to be constitutional. Reasonable suspicion requires a showing of "objective, articulable facts that justify the intrusion as to the particular person and place searched." Officers may consider facts including your behavior, your criminal history, your travel history and any inferences officers may draw using their experiences. Although there is no one definition of what constitutes a "non-routine" search, this type of search may involve seizing and retaining electronic devices for days or weeks, copying the device's contents, and using technology to view encrypted and even deleted data on the device.

Password-Protected Devices

A CBP officer can also view the data on your device if you have a password. A routine search includes turning on the device, opening and viewing image files, text messages, and using a computer's search functions to seek out particular files. In other words, anything an average cell phone or laptop user might be able to do, without the assistance of an external software program aiding the search, is fair game. Even if the search takes a few hours while you wait at the airport, it will probably be considered routine.

However, if you have a password and you do not provide that password to the agent conducting the search, the routine search may not be able to proceed any further. If you refuse to provide your password, but the agents guess your password and search your device, the search may still be considered routine. Note, however, that there are some special risks associated with denying an agent your password.

Do I Have to Provide my Password to Officers?

You are not legally required to provide CBP with passwords to unlock your devices or files. If you have a complicated password and do not provide it to an officer, you limit the amount he or she may see when conducting a routine search. After all, CBP officers also face practical limitations, like time and staffing, that prevent them from conducting hours-long searches of every traveler's devices. Nevertheless, you might want to provide your password anyway. Personal attributes may affect your risk calculation here, but no matter what, refusing to provide a password is risky. At minimum, the officer may escalate the situation, asking you more questions, and holding on to the device for a period of several hours to attempt to bypass the password, causing you to miss a connecting flight, if nothing else. At the other end of the spectrum, non-citizens and non-permanent residents could be denied entry for refusing to cooperate.

Do I Always Need to Consent to a Search?

The most important thing to note is whether you choose to give your password or not, make it clear that you are not consenting to the search. If the government can show you consented to the search, they will not need to show any level of suspicion at any point. If you choose to provide your password, an explicit statement to the effect of "I do not consent to this search," is in your best interest. Additionally, it is suggested that if you are going to provide a password, that you attempt to do so by entering it yourself, rather than providing it to the CBP officer. No matter what you do, do not give the CBP officer a password you know to be false; lying to or obstructing an investigation by a CBP officer is a crime.

What Should I Do with Protected Information?

If your device contains information protected by attorney-client privilege or confidential trade secrets, you might try telling the officers that. According to CBP policy, materials that are privileged and/or confidential are subject to higher standards than general information. For example, legal materials require an officer to "seek advice" from CBP chief counsel who will coordinate with the U.S. Attorney's Office as appropriate. In addition, the policy only provides confidential business information must be protected from unauthorized disclosure. So, if agents are not suspicious of you, they may listen. The explanation also solidifies your expression of non-consent without providing any basis of suspicion against you.

What Happens if Officers Seize my Device?

If CBP or ICE seize and retain your devices you should write down what happened. You should make sure you get a receipt listing the items that were seized, including the date of confiscation and the officer responsible for the seizure. You should also solicit a statement as to when the items would be returned. Note that ICE policy provides searches of electronic devices are to be completed within 30 calendar days of the date of detention. If the items are not returned within this period, you should have legal counsel contact DHS, CBP, and ICE, requesting return of the devices and documentation of the chain of custody of the devices, any copies that were made, and whether the copies were destroyed.


In general, even though border agents have broad authority to conduct electronics searches, their authority is not limitless. The law is far from settled in this arena, and it is likely to evolve in the next few months and years. All travelers should assess their own risks, including immigration status, travel history, and data stored on the device before they decide how to best to proceed. It is prudent these days to carry as few electronic devices as possible and to protect devices by using a good password, as that cannot be used against you in a "reasonable suspicion" determination. It is also risky to refuse to provide a password; it is much riskier for a non-citizen to do so. Lastly, all travelers should be civil and respectful toward the CBP as much as possible. This will work to your benefit.

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.

Events from this Firm
19 Nov 2019, Panel, Massachusetts, United States

Don’t be blindsided by risks you didn’t see coming!

Improve your awareness and understanding of your company’s key risk exposures, and learn how to mitigate and insure them:

Similar Articles
Relevancy Powered by MondaqAI
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please 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.


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.


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