Can the CBP search your electronic devices?

RECENTLY, he merican Civil Liberties Union (ACLU), the Electronic Frontier Foundation, and the ACLU of Massachusetts, on behalf of 10 U.S. citizens and a permanent resident, sued the Department of Homeland Security (DHS) before the U.S. District Court for the District of Massachusetts over its warrantless searches of travelers’ electronic devices at the border.

Based on the statistics released by DHS’ Customs and Border Protection (CBP), the federal agency in charge of the country’s borders, around 189.6 million travelers arrived in the United States during the first six (6) months of this year. While it inspected only electronic devices of 14,993 arriving international travelers for the same period (or 008% out of the189.6 million travelers), this is still a significant increase from the prior years (.002% in 2015 and .005 in 2016).  Acknowledging the recent increase in warrantless electronic device searches, the CBP pointed out its mission to enforce the country’s laws in the digital age.

While the authority of the federal government to conduct warrantless searches of persons and conveyances at port of entries has long been recognized by the U.S Supreme Court, the CBP has taken the position that this power includes the search of electronic devices, including password-protected laptops, phones, and other hand-held devices of both foreign nationals and U.S. citizens.

The CBP released a handout/sheet called “Inspection of Electronic Devices”.  The handout states that the CBP is allowed to inspect, search and detain “all persons, baggage, and merchandise arriving in, or departing from the United States”. An arriving traveler will be provided a copy of the sheet if the CBP officer has decided to “detain, for further inspection” his electronic device(s). The traveler will also be issued a written receipt. After the CBP has completed its inspection or examination of the electronic device (which can include copying of its contents), it will either return the device to the traveler or seize it, if the CBP determines that it is subject to seizure under the law.

Last June 20, 2017, Acting CBP Commissioner Kevin McALeenan, in response to questions propounded by the Senate, took the position that a US citizen will not be prevented from entering the US, even if the CBP determines his electronic device should be detained for further examination or if he refuses to give his electronic device’s PIN or password. He clarified that the CBP will inspect only information physically resident on the traveler’s electronic device, not information located on remote servers.

It will be interesting to see how the courts will decide on this important suit. Because of its far-reaching effects, we anticipate that the case might eventually reach the U.S. Supreme Court.

If you are contemplating of filing any immigration petition for that matter, it is advisable to seek the counsel of an immigration lawyer to guide you on the intricacies of filing for such a petition.


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Atty. Gwendolyn Malaya-Santos is a member of the State Bar of California and the Integrated Bar of the Philippines. To schedule for a free initial in-person consultation, please call Tel. Nos. (213) 284-5984 or (626) 329-8215. Atty. Santos’ office is located at 3450 Wilshire Blvd., Suite 1200, Los Angeles, CA 90010.

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Information contained in this article does not, nor is it intended to, constitutes legal advice for any specific situation and does not create a lawyer-client relationship. It likewise does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter. 

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