Thanks to a 2014 U.S. Supreme Court ruling, law enforcement officers don’t have the right to search the contents of your smartphone without a warrant even if you’re under arrest. The same right to privacy, however, doesn’t apply if you’re entering or exiting the U.S. Lower court rulings have been inconsistent in addressing the extent to which searches of electronic devices are allowed at the border.
It’s not uncommon for Customs and Border Protection (CBP) agents to search the electronic devices of travelers at ports of entry into the U.S., including airports. The number of these searches has increased significantly in the past few years. The federal government has argued that the Fourth Amendment, which protects people from warrantless searches, doesn’t apply to people entering or leaving the U.S.
Most people keep private information on our phones, tablets and laptops. A search of these devices may feel more intrusive than a search of our luggage. So, what are our rights to privacy when traveling or returning from abroad, and what can we do to protect confidential information if border agents insist on looking at these devices?
If border agents ask you to unlock your device or request your password so that they can do it, you can refuse. However, you can probably expect to be detained for a time. They may take your device. They have the right to hold it for five days. However, if they claim “extenuating circumstances,” they can hold it for longer. Be sure to get a receipt if agents keep your device.
To help avoid this inconvenience and invasion of privacy, travel only with the device(s) you need, and keep as little data on them as possible. Remember that if your device is subjected to a forensic search, investigators can find deleted files and possibly information you’ve stored in the cloud.
If you put all of your devices in airplane mode, CBP’s policy prohibits agents from searching data stored in the cloud. The agency also has special rules for searching information that is subject to attorney-client privilege. Therefore, if you have such information on your device, inform the agents before any search begins.
If you’re arrested as the result of a search of your device or your refusal to allow a search, an experienced criminal defense attorney can help ensure that your rights are protected as you deal with the justice system.