Your Data is NOT Your Own at the Border
On November 15, 2017, DTL’s very own Jennifer Diaz, along with other experts, spoke at the AILA CLE Luncheon on travelers’ rights when encountering U.S. Customs and Border Protection (CBP) at airports and other ports of entry. As international travel continues to grow, coupled with increase national security efforts, it is imperative travelers know their rights when entering or exiting the U.S. Travelers enjoy taking their electronic devices with them for pleasure and/or work. Electronic devices hold considerable amounts of our personal or privileged information.
What is CBP’s Policy?
The current CBP policy applies to inbound or outbound travelers and authorizes CBP agents to “examine [any] electronic device and . . . review and . . . analyze the information encountered at the border [with or without individualized suspicion.]” The search boundary extends up to 100 feet within the U.S. border. This policy furthers “the long-standing right of the sovereign to protect itself by stopping and examining persons and property crossing into this country . . . .” United States v. Cotterman, 709 F.3d 952, 960 (9th Cir. 2013) (en banc) (citing United States v. Ramsey, 431 U.S. 606, 616 (1977). Under this policy, CBP may only perform cursory searches of your electronic devices, which include turning the devices on and then examining their contents.
Pursuant to 19 U.S.C. 507, refusal to assist a CBP officer of you items during a border search may garner a misdemeanor charge and a fine of up to $1000.
What Can CBP Seize?
In short, ANYTHING that is contrary to law! After searching through your cellphones, laptops, tablets, or any other electronic device, CBP may detain electronic devices, or copies of information contained therein, for a brief, reasonable period of time to perform a thorough border search. The search may take place on-site or at an off-site location, and is to be completed as expeditiously as possible.
CBP can seize your clothes. Any and all merchandise that appears to infringe on a legitimate trademark or copyright; including, clothes, perfumes, jewelry, and purses can be seized in order to protect the trademark holder.
CBP can seize your money. There is no limit to how much money a traveler can bring into or take out of the U.S. However, anyone carrying $10,000 or more must report it to CBP by completing FinCEN Form 105. This includes money split up between different members of a party traveling together.
Can Officers Search My Information in the Cloud?
No! Applying the holding in Riley v. California, which acknowledged that the search incident to arrest exception “may not be stretched” to cover files stored in the cloud—“[s]uch a search would be like finding a key in a suspect’s pocket and arguing that it allowed law enforcement to unlock and search a house.” Riley v. California, 134 S. Ct. 2473, 2491 (2014). If a search incident to arrest “may not be stretched” to cover cloud data, then a routine border search “may not be stretched” either.
Furthermore, a Department of Justice internal bulletin has instructed that, unless border officers have a search warrant, they need to take protective measures to limit intrusions, and make sure their searches do not access travelers’ digital cloud data. The “cloud” is all content not directly stored on a device, which includes anything requiring internet to access, like email and social media.
Do I Have Access to Counsel at the Airport?
It depends on whether you are a U.S. citizen or not and what the questions relate to. A Pacific Standard magazine article quotes CBP, stating that “[a]ll international travelers arriving to the U.S. are subject to CBP processing, and travelers bear the burden of proof to establish that they are clearly eligible to enter the United States. Travelers are not entitled to representation during CBP administrative processing, such as primary and secondary inspection.”
However, the ACLU states “If you are a U.S. citizen, you have the right to have an attorney present for any questioning. If you are a non-citizen, you generally do not have the right to an attorney when you have arrived at an airport or another port of entry and an immigration officer is inspecting you to decide whether or not you will be admitted. However, you do have the right to an attorney if the questions relate to anything other than your immigration status.”
What Can I Do?
The ACLU put forth great recommendations for travelers to prepare prior to your trip:
- Travel with as little data and as few devices as possible.
- Encrypt devices with strong and unique passwords and shut them down when crossing the border.
- Store sensitive data in a secure cloud-storage account.
- Upload sensitive photos on your camera to your password-protected laptop or a cloud-storage account.
- Turn on airplane mode for all of your electronic devices before crossing a border checkpoint.
If Your Phone (or Any Item of Yours) is Seized at the Border, What Can You Expect?
Past violations of CBP laws, regulations, or policies may render you ineligible for participation in the Trusted Traveler Programs (your Global Entry or similar membership may be revoked). You can appeal! Diaz Trade Law has assisted many individuals in appealing a Global Entry revocation. There is a specific process to go through to ensure CBP hears your side of the story.
You can also end up being repeatedly referred to additional (secondary) screening and will likely be delayed at the airport and questioned during any future travel. If you are, there is a process to request your records, as well as file a traveler redress complaint with CBP. Diaz Trade Law has assisted many individuals in filing traveler redress inquiries with CBP to ensure CBP includes your side of the story in your record.
What does this mean for you? If you are traveling in OR out of the United States, you and your property, including any of your electronic devices, may be checked by CBP at the border and up to 100 feet within the border. See our previous post related to CBP’s authority to search your electronics without probable cause HERE.
How Can We Help?
If you need help planning your trip and the various forms that you may need to fill out, or need help applying for (or getting back in) the Trusted Traveler Programs, we can help. We can also help if you have had any money or property seized by CBP. Contact us today at firstname.lastname@example.org or 305-456-3830 with any questions.