The U.S. Customs and Border Protection (CBP) seems to be increasing electronic device searches in recent months. These devices include password-protected laptops, phones, and other hand-held devices. Everyone, both citizens and non-citizens, is concerned about smooth entries and potential consequences. Does CBP have the authority to do so? Can CBP refuse my entry to the United States upon information found on my phone? Can they search my laptop under the Fourth Amendment?
The short answer is yes. There are almost no exceptions to CBP’s authority to search electronic devices. Under the Fourth Amendment, the federal government has the right to conduct random searches of persons and conveyances crossing international borders under the “border search exception.” CBP claims that under 19 C.F.R. §162.6, all persons, baggage and merchandise arriving in the customs territory (e.g. port of entry) of the U.S. from outside of the U.S. are subject to the inspection and search authority of CBP. CBP believes that an inspection of an electronic device transported by an international traveler does not require the consent of the traveler. However, CBP border searches only extend to information physically resident in the device and not stored on remote servers (e.g., iCloud). Also, privileged information (e.g., attorney-client privileged information) may not be subject to search.
CBP, however, will not prevent U.S. citizens from entering the U.S. if the U.S. citizen refuses to provide a password to unlock an electronic device.