Immigration Articles

Should I Allow the CBP to Search my Smartphone/Laptop?

Recent travel related Executive Orders and immigration enforcement has resulted in numerous questions regarding immigrant rights. In fact, this particular question and discussion is equally applicable to Citizens and Permanent Residents. This is because the laws and constitutional protection against unreasonable search and seizure that apply to Citizens and Lawful Permanent Residents within the United States may not apply at the border!

For instance, Sidd Bikkannavar, an employee of NASA’s Jet Propulsion Laboratory (JPL) – a natural-born US citizen enrolled in Global Entry, was recently detained at an airport in Houston while traveling back to the U.S. from South America (not from one of the 7 and now 6 countries on the travel-ban watch list). Sidd was placed in secondary inspection and pressured to give the CBP agents his phone and access PIN. He could not leave the airport until he did!

The CBP website explains its search authority and claims jurisdiction based on certain Federal Statutes and regulations:

Customs and Border Protection (CBP) officer’s border search authority is derived from federal statutes and regulations, including 19 C.F.R. § 162.6, which states that, “All persons, baggage and merchandise arriving in the Customs territory of the United States from places outside thereof are liable to inspection by a CBP officer.” Unless exempt by diplomatic status, all persons entering the United States, including U.S. citizens, are subject to examination and search by CBP officers.

The ACLU discusses this in a recent article dated March 14, 2017 titled, “Can Border Agents Search Your Electronic Devices? It’s Complicated”. The article is very interesting for how it characterizes what I believe is essentially a “no win” situation for a traveler confronted at the airport by a CBP officer asking to “look inside” his or her smartphone or laptop.

Federal Courts and even the Supreme Court have grappled with this issue over several cases. For instances, in United States v. Montoya de Hernandez, 473 U.S. 531 (1985) Chief Justice Rehnquist writing for the majority states,

Since the founding of our Republic, Congress has granted the Executive plenary authority to conduct routine searches and seizures at the border, without probable cause or a warrant…

And further,

…the Fourth Amendment’s balance of reasonableness is qualitatively different at the international border than in the interior. Routine searches of the persons and effects of entrants are not subject to any requirement of reasonable suspicion, probable cause, or warrant[1]

I have always advocated discretion in such matters. So, here is what you need to know:

  1. The CBP can and may ask you to provide them with your laptop/smartphone for inspection
  2. You must disclose your password/PIN if required to do so
  3. You should not resist such attempts because the CBP is allowed to detain you until you do provide them access to your phone or laptop.
  4. If the CBP takes your phone or other electronic device, ask for a receipt and the procedure to reclaim it.
  5. Ask to speak with a supervisor if you believe you have been treated unfairly
  6. Overall, please be courteous, respectful and polite throughout your encounter.

These are tough times and only tact and patience will see you through a difficult encounter with the CBP.

 

[1] FN1 from original Decision: United States v. Ramsey, 431 U. S., at 616-619; Almeida-Sanchez v. United States, 413 U. S. 266, 272-273 (1973); id., at 288 (WHITE, J., dissenting). As the Court stated in Carroll v. United States, 267 U. S. 132, 154 (1925): “Travellers may be so stopped in crossing an international boundary because of national self protection reasonably requiring one entering the country to identify himself as entitled to come in and his belongings as effects which may be lawfully brought in.”

 

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Kidambi & Associates, P.C, is a full service immigration law firm based in NY tri-state area. The Firm has extensive experience in the field of immigration law and blogs here on various immigration related topics.
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