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The U.S. Government Has the Right to Search Your Electronic Devices at the Border

ElectronicsHundreds of thousands of travelers, citizens and foreign nationals alike cross the U.S. border every day. Many may be surprised to learn that border patrol agents do not need a warrant, any suspicion of wrongdoing or even consent to search a vehicle and all passenger belongings, including electronic devices.
With the exception of foreign and domestic officials with diplomatic immunity, everyone who legally crosses a U.S. border undergoes a primary inspection. Most travelers are familiar with this process: A CBP officer checks your documents, glances between you and your passport and asks what your purpose is for entering the country. Following this exchange, a traveler may be asked to undergo a secondary inspection.
Travelers can be asked into secondary inspection for a variety of reasons:
1. Travelers may be randomly selected by a system referred to as COMPEX, a loose acronym standing for “Customs Compliance Measurement Examination.” This system randomly chooses travelers for additional screening. The results of these screening are then compared to screenings based on other selection criteria in order to assess effectiveness.
2. The CBP officer may refer a traveler to secondary based upon his or her own observations. There are no regulations in place as to what this may entail; it is based solely upon the officer’s own judgment.
3. A traveler may also be asked into secondary if their name has previously been flagged in the system.
Once a traveler has entered secondary, the right to privacy is essentially moot. At this point, either a CBP officer or an Immigration and Customs Enforcement (ICE) special agent will question you and possibly inspect your possessions. This can vary from a quick look into your bags to copying and even detaining your electronic devices, including cell phones, laptops, tablets and cameras. Border officers can search text messages, emails, photos and virtually any data that is currently on the device. This is again up to the agent’s discretion, so due process does not apply here.
However, there are certain rules that outline the necessary procedures for each step. For example, a CBP officer will need the approval of a supervisor before data can be copied from a device, but an ICE special agent is permitted to do so on his or her own authority. If the contents of the device must be further reviewed, the device will be returned to the owner. If electronic devices need to be seized, CBP and ICE create a chain of custody forms to track the possession of the seized device.
CBP reported that from Oct. 1, 2012 through Aug. 31, 2013, it conducted electronic media searches on 4,957 people, averaging about 15 per day. Of the roughly 930,000 people screened by border agents per day, about 35,000 travelers are pulled into secondary inspection per day. This is often distressing for a traveler and can result in a missed flight, a prolonged interrogation or even the loss of belongings needed for one’s livelihood.
If you have further questions on your rights at the border, please watch this Border Crossing 101 video featuring Managing Partner Rosanna Berardi:
Our firm presents multiple cases each week at the Peace Bridge Port of Entry, located between Buffalo and Fort Erie. If you are interested in presenting an application at the Peace Bridge or if you have concerns before your Peace Bridge appearance, please contact us today.