April 3, 2019
Imagine this: You’re returning to the United States after a business trip abroad. While going through customs, you are unexpectedly pulled to the side and brought into secondary inspection. The officer asks for your cell phone and the password to access its content. As you travel for work very often, you keep all of your sensitive client and corporate information on this cell phone. You freeze as you are unsure how to answer the officer.
What should you do? The answer to that question is not so simple.
President Trump’s recent Executive Orders have left many confused and nervous about entering the United States. It is important to remember that each time you enter, regardless of your status or documentation, U.S. Customs and Border Protection determines your admissibility to the country. For this reason, it has become increasingly important for travelers, both domestic and foreign, to know and understand their rights at the border.
A common misconception is that U.S. citizens cannot be stopped at the border. The truth is, U.S. citizens, green card holders and visa holders can all be stopped and even taken into secondary inspection. This could be a random search or the officer may need more information about you or your immigrant status to decide whether or not to allow you into the country.
At the border, a customs officer’s subjective belief that someone has, or is, engaged in any wrongdoing is enough to justify a search. Officers can search a traveler’s physical luggage and their digital device without a warrant and can look through a cell phone or other electronic device in a cursory search for any reason. The same rules apply to email and social media. Customs officers can ask for your email login and password and social media profiles and logins. They can even keep your electronic devices for further examination, which could include copying your data. Some immigration attorneys have reported that clients’ devices were held for several months at a time.
If you are stopped at the border and asked for your passwords or the PIN to access your device, you should be sure to take extreme caution in determining how to answer. It is important to know the implications of refusing to provide this information. A foreign national who is perceived as not being cooperative could be denied entry into the United States. A green card holder is not likely to be denied entry but may only be allowed into the country temporarily. A green card holder cannot be forced into abandoning their status but could find themselves standing before an immigration judge.
If you travel on business to the United States and have sensitive corporate or client information on your devices, care should be taken when crossing. You may want to consider leaving any privileged or sensitive information behind. Regardless of your immigration status, we recommend saving such data to a device or system you will not be taking with you, such as a home computer or the “cloud.”
While this subject is expected to develop further over the next few months, it is still best practice to travel to the United States with “clean” electronic devices.
