Alert to Frequent Fliers: Customs & Border Protection (CBP) needs to borrow your electronic devices and data!
Although this may seem unfathomable to most in the U.S, the Customs and Border Protection (CBP) has begun a routine process of inspecting electronic devices of ALL incoming passengers. Yes that also includes US Citizens and Lawful Permanent Residents.
The “inspection” of electronic devices includes cell phone, I-pads, computers and any other electronic device where information can be stored. Yes, some officers have also asked for passwords for Social Media Accounts, and if you, like thousands others, have Facebook, LinkedIn, Instagram etc on your I-pad, computer or smart phones, those apps are also subject to examination.
If CBP selects your device to be inspected, they have the right to retain the appliance/instrument for several days (i.e you will NOT be walking out of the airport or land border with your phone/computer/tablet!) CBP will instead issue you a form (6051-D) that details what item(s) are being detained, who at CBP will be your point of contact, and the contact information (including telephone number) you provide to facilitate the return of your property within a reasonable time upon completion of the examination.
It is important to note that CBP may keep your electronic device for a period of time that differs from a few hours upto 5days; or they may never return it to you, but instead seize it if the device contains evidence of a crime, contraband or other prohibited or restricted items or information – then you will be notified of the seizure as well as your options to contest it through the local CBP Fines, Penalties, and Forfeitures Office.
CBP has asserted that the right to inspect electronic devices, also gives them the right to copy materials/information stored on any/all of the devices they retain. T right to copy extends to information that is normally classified Personal or Business Confidential Information and also to information normally protected by the Trade Secrets Act.
How is this legal?
The Fourth Amendment to the United States Constitution protects us against unreasonable government searches and seizures. This generally requires the government to show a court probable cause that a crime has been committed and get a warrant before it can search a location or item in which you have a reasonable expectation of privacy.
Searches at places where people enter or leave the United States may be considered “reasonable” simply because they happen at the border or an international airport, and the 4th amendment technically does not apply at Ports of Entry; including land, sea and air ports.
This area is primed for lawsuits, and we expect that Privacy advocates will push for a narrowing of the “border exemption” doctrine to a more narrow framework, but till that happens, CBP has vast authority to demand passwords; inspect your digital data, and keep a copy of documents and materials that would otherwise be protected.
Can I refuse to Cooperate?
Passengers do have the right to deny CBP authority to keep the device, but that, for US Citizens and Lawful Permanent Resident passengers returning to the US, could mean sitting in Secondary Inspections for upto 10 hours or more. CBP cannot deny a US Citizen the right to return to their country, but they can detain you at the airport for several hours.
Non U.S. Citizens have even fewer rights, and may be denied entry and expeditiously removed from the airport for refusing to comply.
Precautions you can Take
For those of you with access to an in house Tech Department, take their advice on what would be best for you and your business. Frequent travelers have resorted to having a “travel device” that they, by design, store minimum data on.
Make regular backups of your electronic devices which ensures that your important information stays available to you if your computer is ever taken from you, lost, or destroyed. (If you don’t have access to your computer, you’ll still have access to your data.)
Encrypting the information on the computer, which ensures that your information stays confidential from other people whom you don’t authorize to access it. (If you lose control of your computer, other people won’t have access to your data.)
For more information on CBP policies pertaining to the above, you can and should review their page https://www.cbp.gov/sites/default/files/documents/inspection-electronic-devices-tearsheet.pdf