Travelers may want to consider the following when crossing borders or entering the United States:
- U.S. Customs and Border Patrol (CBP) agents are seizing laptops and phones and searching them without a warrant. Organizations including the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF) believe the scope of such searches is unconstitutionally broad, noting that although basic constitutional principles do not apply fully at U.S. borders or ports of entry (POEs), the border is not a “lawless place” and government agencies “are using the pretext of the border to make an end run around the First and Fourth Amendments.” The ACLU, which notes that the privacy implications of device searches are much farther-reaching than luggage searches, filed a lawsuit with the EFF on behalf of 11 travelers whose electronic devices were searched at POEs.
- According to statistics, CBP searched 33,295 such devices in fiscal year (FY) 2018, which was an increase of 9 percent from the previous fiscal year and more than six times the number searched in FY 2012. There are reports of agents using text messages found on a phone to support inadmissibility determinations. Recent examples have included texts discussing marijuana use or distribution, evidence of unauthorized employment, and intent to move to the United States when on a visitor visa or visa waiver. CBP and U.S. Immigration and Customs Enforcement (ICE) agents can also search devices for law enforcement and investigatory purposes and for intelligence-gathering.
It may be advisable to consider your phone as luggage: just because it’s locked doesn’t mean government agents can’t access what’s inside. Some savvy travelers now apparently may want to consider bring a separate phone used only when traveling.
- ACLU update on constitutional rights within the 100-mile border zone, https://www.aclu.org/other/constitution-100-mile-border-zone; elated fact sheet, https://www.aclu.org/other/aclu-factsheet-customs-and-border-protections-100-mile-zone?redirect=immigrants-rights/aclu-fact-sheet-customs-and-border-protections-100-mile-zone
- EFF release, https://www.eff.org/press/releases/new-documents-reveal-dhs-asserting-broad-unconstitutional-authority-search-travelers
- News articles, https://www.usatoday.com/story/tech/2019/05/01/u-s-customs-can-seize-your-phone-when-you-return-home-abroad/3632116002/