Traveling to or from the United States? All electronic devices possessed by citizens and noncitizens are subject to search, and for noncitizens, the contents discovered could have serious consequences.

Any electronic device in your possession when you enter or exit the United States may be inspected by U.S. Customs and Border Protection (CBP) officers. This includes, but is not limited to, laptops, tablets, mobile phones, external hard drives, USB drives, and cameras.

CBP officers have the legal authority to conduct a search of you and your property at the border. All persons, regardless of citizenship (i.e., including citizens of the United States), are subject to inspection, and CBP does not require a warrant to search a traveler’s electronic device(s).

CBP’s broad powers also allow officers to ask travelers for the password to their device(s). Although travelers are not required to provide the password, noncompliance could have serious consequences, even for U.S. citizens. According to the CBP website, “all travelers are obligated to present their electronic devices and the information resident on the device in a condition that allows for the examination of the device and its contents.” If a CBP officer is unable to complete an inspection of a device, the device could be temporarily detained or permanently seized.

Non-citizens who refuse to cooperate could face additional consequences, as CBP “may consider the foreign national’s noncompliance and the inability to inspect the device when making admissibility decisions and may take appropriate law enforcement actions.” In other words, failing to cooperate could result in a denial of entry.

Numerous federal statutes and regulations authorize CBP to inspect and examine all individuals and merchandise entering or departing the U.S., including personal property, such as electronic devices. See, e.g., 6 USC § 211; 8 USC §§ 1225, 1357; 19 USC §§ 482, 507, 1461, 1496, 1581, 1582, 1589a, 1595a; 19 CFR § 162.6. The constitutional authority of the U.S. government to conduct border searches is well-established and extensive, as recognized by longstanding federal court precedent.

The Government’s interest in preventing the entry of unwanted persons and effects is at its zenith at the international border. Time and again, [the Supreme Court has] stated that ‘searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border.’

United States v. Flores-Montano, 541 U.S. 149, 152-53 (2004).

Although CBP’s authority is broad, the agency has implemented internal policies and processes that officers must follow when searching electronic devices. A CBP Directive places some limits on the scope of a search. Notably, per that directive, CBP cannot intentionally use the device to access remotely-stored information.

CBP’s internal policies could change in the future, but as of right now, the above-cited directive still applies. Therefore, to avoid the potential disclosure of sensitive or confidential information, individuals traveling to or from the United States may want to consider the following actions:

Travel with a “clean device,” either by deleting sensitive information from the device in advance or by traveling with a dedicated travel device;
Store sensitive information and data in a secure cloud storage account;
Use different login passwords for your device and for access to cloud-stored information;
Sign out of web-based services and turn off automatic syncing of cloud services; and
Turn on airplane mode and disable Wi-Fi before entering a border checkpoint.

Additionally, noncitizens should evaluate the personal content that could be discovered on their electronic devices (e.g., photos, events listed in a calendar), as well as content that could be discovered on various social media platforms. The U.S. Secretary of State recently issued an internal directive instructing consular officers to conduct searches of foreign nationals’ social media content. Any “derogatory” content discovered could potentially be used to revoke existing visas, deny new visa applications, and/or deny foreign nationals’ entry to the United States.

The directive instructs officers to search for activities that demonstrate support for terrorist activities and/or terrorist organizations. However, the directive seems to suggest that “conduct that bears a hostile attitude towards US citizens or US culture, including government institutions or founding principles,” can be construed as evidence of “terrorist activity.” This is a very broad definition, and based on the recent reports by major media outlets, numerous foreign nationals have already been impacted.

Students accused of supporting causes that the U.S. government alleges are supporting “terrorist activities” or otherwise “hostile toward the U.S.” have had their F-1 visas revoked, and some have even been placed in removal proceedings. Recently, a former president of Costa Rica and Nobel Peace Prize laureate discovered that his visa to enter the U.S. was revoked, most likely due to social media posts critical of U.S. President Donald Trump.

Although this particular directive was distributed to consular officers, it is possible that CBP officers may have received, or could eventually receive, similar instructions from the U.S. Secretary of Homeland Security. It is reasonable to assume that, under the Trump administration, content discovered by CBP during the search of an electronic device could potentially be used to find a noncitizen inadmissible to the United States.

These policies will likely be challenged in court. However, it is impossible to predict the outcome. In the meantime, noncitizens should take steps to identify and remove any content that could potentially trigger serious immigration consequences.

The Immigration Law Practice Group at Kitch Attorneys & Counselors will continue to monitor evolving situation and will keep clients informed of any relevant updates. If you have a personal situation that you would like to discuss with an attorney, please call us at 313-965-7461.

Any information included here or through our website is presented solely for general informational purposes and is not in any way intended as legal advice, is not a substitute for getting actual legal advice from an attorney, and should not be acted upon as legal advice without first seeking qualified professional counsel specific to your needs and situation. Additionally, by providing this general information and the information on our website, no attorney client relationship is created.

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