Searches of Devices at the U.S. Border

Seyfarth Synopsis: Although longstanding policy of U.S. Customs and Border Protection authorizes searches of electronic devices in the possession of travelers arriving in the United States, recent reports of such searches have heightened businesses' concerns when their employees travel.  In the event of such a search, this guidance informs employees about what they can expect, and provides employers with recommendations to ensure against loss, corruption or misuse of company information

Overview:  United States’ Customs laws and regulations (See, 8 U.S.C. § 1582, 19 C.F.R § 162.6) authorize customs officers to inspect, search and/or detain any person, baggage, and/or merchandise arriving in, and or departing from, the United States. This authority extends to inspections, searches and temporary detentions of electronic devices possessed by travelers, including mobile telephones, tablets, and laptop computers.  Increasingly searches are becoming more common, and employees traveling with company data and/or information should carry this guidance when returning from foreign travel.  “Supreme Court decisions have upheld the doctrine that CBP's search authority is unique and does not violate the fourth amendment's protection against unreasonable searches and seizures.”[1] This exception allows CBP to conduct “routine” searches on luggage, devices, vehicles or persons without a warrant. “However, with this authority, CBP expects all of its officers to conduct their duties in a professional manner, and treat each traveler respectfully.”[2]

Who May Be Chosen for an Inspection: United States Customs and Border Protection (“CBP”) guidance states that a variety of circumstances can lead agents to select a traveler for inspection, search and/or detention of electronic devices, including: travelers holding incomplete travel documents or lacking proper documents and/or visa; travelers who have previously violated a law that CBP enforces; travelers with a name that matches a person of interest in government enforcement databases; and/or travelers randomly selected for such a search.  Selection for a search does not necessarily mean that CBP believes that you have done something wrong. A 2012 CBP Directive noted that “in the course of a border search, with or without individualized suspicion, an Officer may examine electronic devices and may review and analyze the information encountered at the border”.

At this time, CBP has not articulated policies that consider a traveler’s nationality as a factor supporting a search; however, not all criteria applied by CBP have been made public. CBP has also not disclosed whether travel to certain countries could draw scrutiny. There have been reports of foreign visitors as well as United States citizens being subjected to inspections.

What Will Occur During the Search:  The manner in which a search is conducted may vary widely depending on a number of factors.  A customs official may simply conduct a search through the device and then return it to you.  At the other times, CBP may elect to take temporary custody (‘detention’) of the device for further examination.  If CBP decides to detain your electronic devices, the customs officer will issue you a written receipt (Form 6051-D), which will detail what items are being detained, who at CBP will be your point of contact, and your own contact information in order to facilitate return of the items within a reasonable time.  After CBP has concluded inspecting your device, they will contact you to come retrieve the device. If you are unable to retrieve the device in person, CBP will provide instructions to have the device shipped to you at your expense. In some cases, devices could be turned over to Immigration and Customs Enforcement who also have border search authority. 

What You Should Do During the Search:  Generally speaking, a traveler has the right to remain in the room unless there are national security, law enforcement or other considerations that would make it inappropriate to allow individuals to observe the review. It is important that you cooperate with the Officer by providing the device to the official and logging in or providing password information where requested. Failure to cooperate in the search may result in either seizure or extended detention of the device, and in the case of certain non-citizens could result in denial of entry into the United States. How your employee handles a border entry may be driven by his or her citizenship status. In summary, U.S. citizens may be delayed but will be granted entry, lawful permanent residents should plan on a high level of scrutiny and non- citizens could be barred from entry.

What You Should Do If Your Device Contains Privileged or Sensitive Material:  While we recommend that travelers cooperate with CBP, it is critical that you communicate to the Officer the presence of any privileged or sensitive material. This data should be “passphrase” protected and the appropriate encryption tools should be implemented.

Privileged. Keep in mind confidential privileged legal materials are not necessarily exempt from CBP access and review; however, they may be subject to special handling as follows: “If an Officer suspects that the content of such a material may constitute evidence of a crime or otherwise pertain to a determination within the jurisdiction of CBP, the Officer must seek advice from the CBP Associate/Assistant Chief Counsel before conducting a search of the material, and this consultation shall be noted in appropriate CBP systems of records. CBP counsel will coordinate with the U.S. Attorney's Office as appropriate.”[3] In other words CBP may choose not to inspect, but in the event they determine a review is pertinent the Agent should follow the procedure seeking internal legal advice. 

Sensitive. According to the CPB field directive Officers are instructed as follows: “Other possibly sensitive information, such as medical records and work-related information carried by journalists, shall be handled in accordance with any applicable federal law and CBP policy. Questions regarding the review of these materials shall be directed to the CBP Associate/Assistant Chief Counsel, and this consultation shall be noted in appropriate CBP systems of records.”[4]

Invoking a privilege or requesting a sensitive review has implications from a practical perspective. If you plan to take this route, you should consider entering the U.S. during normal business hours, carrying a copy of this CBP Directive (and ensuring that the directive remains applicable under the current administration), and consider the likely delay and the effect on connecting flights.

What You Should Do to Protect Data/Information Belonging to an Employer: CBP policy directs officials conducting searches and/or inspections of electronic devices containing “business or commercial information” to “treat such information as business confidential information and . . . take all reasonable measures to protect that information from unauthorized disclosure.”  Nonetheless, customs searches entail certain risks necessitating safeguards on the part of the traveling employee.

Some tips to consider:

• Whenever possible, employees should take safeguards to avoid loss or destruction of files or data by backing up such files or data onto company servers or into a secure cloud based account.
• To the extent possible devices should be both electronically and physically labelled as belonging to the company.
• Files that contain confidential or propriety information should be marked as such both within the document and in the file name of the document and should appropriately encrypted.
• Have employees use strong encrypted passwords and shut down devices during border crossings (this is to ensure that devices are not hacked).
• Consider traveling with an empty device (employees can work from their cloud account during the trip).
• Consider traveling with an inexpensive laptop storing only critical information.
• Consider traveling with a “temporary”, inexpensive phone for work and leave the smart phone at home.

What if You Believe that You Have Been Mistreated, Harassed or Are Repeatedly Selected For Device Searches

If still in the customs area, you can request to speak with an onsite supervisor. Additionally, travelers who are concerned that they have been incorrectly selected for enhanced screening, particularly if on a repeated basis can seek assistance from the  Traveler Redress Inquiry Program.  Additionally, travelers can contact the Department of Homeland Security Office of Civil Rights and Civil Liberties.