Smart phones. Tablets. Laptops. It’s hard to imagine life without them anymore. However, if you’re about to travel across an international border, you should know that your devices will likely be subject to searches by Customs and Border Protection (CBP). Whether you’re a U.S. citizen or not, your electronics are not anonymous safe-havens for your personal information. The Department of Homeland Security has recently expanded searches of electronic devices and other personal belongings for anyone – citizen or non-citizen – trying to enter the United States.
Can I refuse to allow DHS to search my belongings?
The sad reality is that even United States citizens have almost no right to refuse searches by CBP upon entry to the United States. Citizens, however, cannot ultimately be denied entry to the U.S., while any noncitizen may be at risk of being turned away or even detained if she refuses to allow a search of her personal effects, including electronic devices.
The law generally allows DHS to conduct searches of travelers’ personal effects if there is a reasonable cause to suspect inadmissibility. While CBP directives regarding searches of electronic devices date back to at least 2009, CBP has notably ramped up its searches of personal devices since the beginning of the year. By some accounts, such searches are reaching unprecedented levels, surpassing in one month the total number of searches conducted in previous years. Horror stories about CBP searches of smartphones and laptops have flooded the news. Even U.S. citizens have not been immune to these invasive searches of personal data.
How can I protect my personal information?
DHS has clarified that for U.S. citizens searches of devices will be limited to the information “physically resident” on the device. Searches of social media, “cloud” information, or any other data that is maintained by a third-party server will not be permitted without a warrant. While this clarification is small comfort, it does provide a blueprint for U.S. citizens on how to safeguard information from invasive searches at the border: Save it in the cloud and be certain when travelling that private information is cleared from your devices.
Non-citizens are of course far more vulnerable. They may be denied entry for refusing to cooperate with a search. Even lawful permanent residents may be subject to arrest and detention. The current administration has even announced the inclusion of social media handles as part of a non-citizen’s alien file. See Notice of Modified Privacy Act System of Records, 82 Fed. Reg. 43556 (Sept. 18, 2017). The administration has hinted that, for non-citizens, they may search all social media accounts, files, and records, whether “physically resident” on the device or not.
Thus, the best advice for citizens and non-citizens alike is to leave devices at home, and keep any sensitive information in the cloud or on an external hard drive that you do not take with you.
Consider purchasing a temporary flip phone for use on trips. Arrange for use of a computer at your destination so that you do not have it with you when crossing the border. Buy an old-fashioned book or magazine and leave that tablet behind. If you must travel with a computer or other device, transfer all sensitive information to the cloud or an external hard drive and disconnect it before you leave. Oh, and remove all your social media apps. Your Facebook friends will be there when you get back.
For questions or additional information about protecting your rights at the border, contact our office at 512-633-1785 or [email protected].