Recently, the United States Customs and Border Protection (CBP) issued a new directive with some updated language related to searches at the border. Despite the update, experts say more specific language and regulation related to border searches is still lacking.
According to the official procedures, a CBP officer can ask a traveler to unlock their electronic device to gain access to any information, messages, contacts or files stored on the device.
Toronto-based immigration lawyer Joel Sandaluk points out that refusing to unlock a device for officers at the border can result in denied entry to the country for not submitting to a search — a guideline that is present in Canada as well.
“It’s the same as opening up the trunk in your car,’’ Sandaluk said. “Is it an invasion of my privacy to open up the trunk of my car and root around to see what’s inside, the answer is yes, it is. But, on the other hand, if I am a traveler and I want to access a country, I have to submit to certain examinations in order for the border guards to satisfy themselves that I am not in the process of committing an offense.”
Types of Phone searches
The latest directive from the CBP identifies two categories of border searches: the basic search and advanced search. While a basic search simply relates to the process of an officer accessing information through the device’s operating system, the search is considered advanced when the officer needs an external wired or wireless connection to review the contents. This includes information on a cloud-based server, external network or anything that requires an internet connection to access.
The directive states that this type of search is done “in instances in which there is reasonable suspicion of activity in violation of the laws enforced or administered by CBP, or in which there is a national security concern, and with supervisory approval.”
“[When] I cross a border with a laptop, everything is in the cloud, I don’t have documents or files on my computer that can be copied or downloaded from that device,” Sandaluk said. “It’s the technological equivalent of having an empty trunk.”
For a basic search, the traveler will disable any external connections or the officer will do so when “warranted by national security, law enforcement, officer safety or other operational considerations,” according to the latest directive.
Should a traveler refuse to provide the password to unlock an electronic device, aside from possibly being denied entry to the country, the device can be subject to exclusion, detention or seizure. Although this might seem unnecessarily invasive for some, Sandaluk explains that there are valid security and customs concerns that make it reasonable for government agents to want access to electronic devices.
“If you’ve got nothing to hide, I’d say don’t hide,” Sandaluk said. “The same way that a car trunk might contain drugs or weapons or some other illicit substance, a cell phone search might reveal that I was traveling to the United States to engage in work without authorization, that I was involved in some sort of illicit business venture or something like that.”