Phone and Laptop Searches at the Border

Did CBP ask to search your phone or laptop when entering the United States?  There’s a pretty good chance federal law enforcement is investigating you or your employer.

For FY2024, the U.S. Department of Homeland Security's U.S. Customs and Border Protection processed 420 million travelers at ports of entry.

3% (just over 12.6 million travelers) were referred to secondary inspection (i.e. given additional scrutiny by officers).

.01% (47,047 travelers) had their electronic devices searched.

Border searches usually don’t happen at random. 

And the law governing border searches of electronic devices is complicated and still developing.  Some circuits require reasonable suspicion.  Others no suspicion. In all cases, the search has to be reasonable under the Fourth Amendment.  

Internal DHS policies govern how the search is to be conducted, the timeline for getting your devices back, and other issues like whether a taint team is required to screen for attorney-client privileged materials.

So what should you do if CBP asks to search your phone or laptop at the border?  The answer will vary based on circumstances.  Are you a U.S. Citizen returning home?  A foreign national seeking admission?  An attorney carrying sensitive client information?

In all cases, you will want to be cooperative while also exercising your rights.  For example, you don’t have to provide your password, but if you don’t CBP can and likely will exclude or detain your device.  If you are a foreign national seeking admission, they might deny admission and send you home.  

If you or your employee’s phone or laptop are detained at the border, you will need sound counsel with experience in border searches and DHS policies and procedures.  If you are an employer sending employees abroad, it makes sense to think through and implement internal policies and procedures governing the carrying of electronic devices containing sensitive corporate information.

Before joining C+H, C+H Dallas Partner Rob Dunikoski spent years advising Homeland Security Investigation (HSI) special agents on these and other complicated customs law issues.  For more information on his background and experience, please visit https://ch-llp.com/about-rob-dunikoski.