In a previous article (“What Are Your Rights in U.S. Airports and Ports of Entry?”) we discussed that as part of the inspection process, U.S. Customs and Border Patrol (“CBP”) officers may search your bags and personal belongings without your permission. In a subsequent article (“CBP’s Authority to Search Phones and Laptops in U.S. Airports and Ports of Entry”), we advised that based on the foregoing search authority, CBP has taken the position that it has the ability to examine your computers, mobile phones, cameras and other digital devices, without a warrant.
We further noted that CBP can ask for your password or request you unlock your electronic device, and that the consequences of your decision to refuse or comply may rely primarily on your legal status in the U.S. (“Do I Have to Provide a Password or Unlock my Phone or Laptop if Asked by CBP?”)
Regardless of your legal status in the U.S., we suggest following recommendations and precautions you can take in preparation for your trip:
Recommendations and precautions to take to prepare for your trip:
Travel with as little data and as few devices as possible.
- Consider using a smartphone or laptop limited to travel purposes, that doesn’t contain private or sensitive information.
- Ship your electronic devices to yourself in advance. (Be aware that CBP also claims the authority to search international packages, so it is best to encrypt any devices that you ship.)
Encrypt devices with strong passwords and shut them down when crossing the border.
Store sensitive data in a secure cloud-storage account.
- Disable any apps that connect to cloud-based accounts where you store sensitive communications or files, and don’t keep a copy of cloud-stored data in your physical possession.
Note: CBP stated in July 2017 that its policy does not permit searches of cloud-stored data that is accessible from electronic devices through the internet. This means that any search of an electronic device at the border should not extend to data that is only accessible via the internet; such as, email or social media messages and posts that are stored on remote servers.
Upload sensitive photos on your camera to your password-protected laptop or a cloud-storage account.
- Digital cameras don’t offer encrypted storage, so you should consider backing up your photos and deleting them from your camera and reformatting the camera’s memory card.
Turn on airplane mode for all of your electronic devices before crossing a border checkpoint.
- CBP statedin July 2017 that its policy does not permit searches of cloud-stored data that is accessible from electronic devices through the internet. Keeping your devices in airplane mode will help ensure compliance with this policy.
Let CBP agents know if you have privileged material on your device.
- The 2018 CBP Directiveon border device searches requires certain procedures to be followed before they can search attorney-client or attorney work product materials.
- If you have any privileged or sensitive material on your device, tell the CBP agents before they begin any search.
To comply with a search, enter the password yourself instead of providing it to a CBP agent.
- CBP agents may still demand that you share it but it’s worth a try.
- If you do provide your password, change it as soon as you can and do not use that password for any other account.
Until the U.S. Supreme Court decides on the constitutional limits of the government’s powers at the border, questions about the government’s authority to conduct these kinds of searches aren’t likely to be settled. In the meantime, travelers should take precautions to protect themselves from such searches.
For more information about electronic device searches at the border, or any other immigration matter, contact the Law Offices of Azita M. Mojarad, P.C. by e-mailing azita@azitalaw.com or calling (312) 641-0771.