It is important to know your rights and responsibilities when you prepare to travel internationally. This is especially true of traveling into the United States at this time. The U.S. border is protected by the U.S. Department of Homeland Security, in part through its components, U.S. Customs and Border Protection (CBP) and the U.S. Border Patrol (BP).
All travelers who wish to enter the U.S. must present themselves for inspection by a CBP Officer. Whether this happens at the U.S.-Canadian border, U.S.-Mexican border, or at an international airport or other port of entry, U.S. law considers the area to be a border zone, where the protections of the U.S. Fourth Amendment do not apply. Under this “border search exception,” CBP Officers do not need a warrant or even a reasonable suspicion to search you, your luggage, and your belongings.
In 2009, CBP published its current policy1 on the search of electronic devices that are located in border zones. While this policy has not been challenged and upheld in court, the fact remains that CBP Officers can and routinely do ask to inspect laptops, tablet computers, smartphones, and other electronic devices. But do you have to unlock the device for CBP, or give them your password for social media accounts?
For U.S. citizens, the answer is “no.”2 U.S. citizens are free to decline CBP’s request to unlock their electronic devices and refuse to permit a search of their email, social media accounts, and their smartphone’s metadata. U.S. citizens cannot be denied entry into the U.S. for refusing to comply with a request to unlock a device or share a password. However, CBP can detain individuals in Secondary Inspection while they check on identity and admissibility issues, and they can hold the electronic device for weeks or even months before returning it.
For lawful permanent residents3 (so-called “green card holders”) and nonimmigrant workers and visitors (who are traveling with a B, F, H, L, O, P, etc. visa), the situation is less secure. CBP is not supposed to detain permanent residents, or refuse them entry into the U.S. because they refuse to unlock a device or share password(s). But, there is a risk that CBP may look for a reason to issue the individual a Notice to Appear before a U.S. immigration judge. Temporary visa holders are even more vulnerable. CBP can refuse entry to nonimmigrant workers and visitors, or they can detain these travelers and return them back to their last country of origin at the individual’s expense.
No one has the right to counsel4 or to speak with their attorney while at the border or in CBP offices located at airports or at the physical borders of the U.S. Preparation and awareness of these rules are the best policy. Be prepared to agree or to refuse a request to search your laptop or smartphone. Understand your rights and when you can safely refuse to cooperate with a CBP request. If you are concerned at all about exposing confidential information in your electronic devices, the smartest policy would be to leave any sensitive devices at home.
1 https://www.dhs.gov/xlibrary/assets/cbp_directive_3340-049.pdf
2 https://help.cbp.gov/app/answers/detail/a_id/176/~/cbp-search-authority
3 https://help.cbp.gov/app/answers/detail/a_id/1191/~/traveling-outside-of-the-u.s.—documents-needed-for-lawful-permanent-residents
4 https://www.americanimmigrationcouncil.org/sites/default/files/foia_documents/access_to_counsel_cbp_foia_factsheet.pdf
