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June 21, 2018

Every day, at sites across the United States, federal agents search container ships, trucks, cars, and aircraft entering the country. Now, increasingly, federal agents are also searching the electronic devices of the individuals entering the country – from citizens to permanent residents to tourists. See United States v. Cotterman, 709 F.3d 952, 956 (9th Cir. 2013) (en banc) (“Every day more than a million people cross American borders [and] . . . they carry with them laptop computers, iPhones, iPads, iPods, Kindles, Nooks, Surfaces, tablets, Blackberries, cell phones, digital cameras, and more.”). The analog search for contraband or threats to the nation has now gone digital.

Indeed, from 2015 to 2016, the number of travelers who had their devices searched increased from more than 4,700 to more than 19,000. For 2017, that number exceeded 30,000 travelers. The total number of searches represents just a fraction of the 397 million travelers to have entered the United States that same year, but the practice is nonetheless drawing attention.

The U.S. Customs and Border Protection agency has the authority to search your phone. It even has the authority to request your password so that it can conduct this search. And it doesn’t stop there. Customs agents can download the full contents of your device and save a copy of that data for future inspection. If the forensic search does not reveal probable cause that the device contains evidence of a crime, the government is supposed to destroy the copied information within 21 days.

The right to refuse this search will carry varying consequences. Border agents cannot deny a U.S. citizen admission to the country, but they can deny entry to a foreign visitor. The ability of a lawful permanent resident to decline a search and still enter the country is a more difficult question. In all cases, though, border agents may still seize your phone for up to five days – and even longer in the case of “extenuating circumstances.”

The legal issues that arise at our borders involve two competing legal axes. On one axis is the Supreme Court’s recent decision in Riley v. California, 134 S. Ct. 2473 (2014), which held that law enforcement officers must obtain a warrant to search a cell phone incident to an arrest. In doing so, the Court recognized that today’s “cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans the privacies of life.” Id. at 2494-95. On the other axis is the more venerable precedent giving the government wide latitude in securing its borders. Courts around the country have uniformly acknowledged that the government may conduct routine border searches without any level of suspicion.

How these two competing interests will coalesce – searches of cell phones at the border – is currently the subject of active litigation. To date, the U.S. Court of Appeals for the Ninth Circuit appears to be the only federal appellate court to have addressed the issue, ruling, in an en banc decision, that reasonable suspicion was required for the search:

Mindful of the heavy burden on law enforcement to protect our borders juxtaposed with individual privacy interests in data on portable digital devices, we conclude that, under the circumstances here, reasonable suspicion was required for the forensic examination of Cotterman’s laptop. Cotterman, 709 F.3d at 957.

Cotterman refers to a forensic inspection of a device, the type associated with the use of computer software to analyze a hard drive; it does not refer to a manual inspection of a cell phone’s text messages and photos. See United States v. Mendez, 240 F. Supp. 3d 1005, 1007 (D. Ariz. 2017). A manual inspection of a cell phone at the border remains, at least according to one court, “permissible under the border search exception.” Id.

This area of the law is likely to remain in flux for the near future, as challenges to criminal searches at the border work their way through the various appellate courts. Civil lawsuits have also begun to challenge the constitutionality of these searches, and one such lawsuit has survived an early motion to dismiss. See Janfeshan v. U.S. Customs & Border Prot., No. 16-CV-6915 ARR LB, 2017 WL 3972461, at *1 (E.D.N.Y. Aug. 21, 2017) (“Plaintiff, Hemad Janfeshan, brings this suit . . . to challenge the search of [his] cellular phone, as well as the subsequent retention of the contents thereof, that took place after he arrived in the United States from Cairo, Egypt.”).

In the meantime, travelers have a few precautions that they can take to safeguard their private information. One simple suggestion is to limit the number and type of devices that you travel with. Travelling with what is essentially a burner device – a limited use cell phone – will minimize the risk of exposing sensitive data. Another safeguard is to keep the phone in airplane mode. It is Customs policy not to search cloud-stored data. Keeping the phone offline will help keep cloud data inaccessible.

Finally, if you are traveling with confidential or privileged material, you should inform border agents of this fact. According to a January 2018 directive, officers are to ensure the “segregation of any privileged material from other information examined during a border search.” This segregation process will occur through the establishment and employment of a Filter Team composed of legal and operational representatives. Other sensitive information, such as medical records and journalist notes are to “be handled in accordance with any applicable federal law and CBP Policy.” Officers encountering business or commercial information are to treat this information as “confidential information and shall protect that information from unauthorized disclosure.”

As both CBP policy and the case law evolves on these issues, travelers should fasten their legal seatbelts; they may be in for a bumpy arrival.