Can you unlock your phone for me please?

By Jared C. Leung
As an immigration attorney, I have received many calls from distressed clients whose friends or relatives were denied entry at the airport and sent back to their home countries on the first available flight, because CBP (Customs and Border Protection) had discovered materials on the person which suggested that he/she was entering the U.S. to engage in activities that were inappropriate for his/her visa. Unfortunately, by the time I received the call there was little I could do to help because CBP has such wide discretion to admit or reject a person attempting to enter the U.S. Once an adverse decision has been made, it is virtually impossible to reverse.

From the wedding dress to the smart phone

When I started practicing immigration law over 20 years ago, incidents like these would involve tangible items in bags and suitcases, such as a luggage full of clothing for each season of the year for a visitor claiming to want to visit the U.S. for only a short period of time, or having a wedding dress in the suitcase when the purported purpose to enter the U.S. was vacation. Then, laptop computers came about. CBP began denying admission to individuals based on what was discovered on their laptops -- documents that indicated intent to work in the U.S. or see customers, such as service or purchase orders.

Now, we have entered the era of electronic devices that virtually every individual carries -- smart phones. A smart phone contains thousands of photos, messages, emails, and many smart phones are connected to cloud storage systems that can provide access to an unlimited amount of personal data. I recently received a call from a U.S. citizen whose girlfriend was denied entry as a tourist because the CBP officer discovered text messages on the girlfriend's phone which indicated that the U.S. citizen and his girlfriend had discussed the possibility of getting married. Of course, the caller vehemently denied that they were going to get married. They merely had discussed marriage. Unfortunately, the text messages provided sufficient evidence for the CBP officer to exercise discretion to deny the girlfriend's entry into the U.S.

The Fourth Amendment protection does not apply at the port of entry

CBP officers can conduct a search on your person, your luggage, and anything on you, including electronic devices such as phones, laptops, or flash drives without a warrant or probable cause. CBP only needs reasonable suspicion to conduct a border search. The usual Fourth Amendment protections do not apply because when you are at a port of entry, you have not technically entered in the U.S. You officially enter the U.S. only after you have cleared customs and immigration and have been properly admitted.

CBP officers feel strongly that they have unrestricted rights to search anything from any traveler seeking admission to the U.S. And the courts have generally agreed with them.

However, the Court in United States v. Cotterman also held that the government needed reasonable suspicion to search laptops.

You have to unlock your phone for CBP

CBP can request your password to unlock your phone. Among other statutes, they point to 19 C.F.R. § 162.6, which states: "All persons, baggage, and merchandise arriving in the Customs territory of the United State from places outside thereof are liable to inspection and search by a Customs officer. Port directors and special agents in charge are authorized to cause inspection, examination, and search to be made . . ."

So, for Customs officers, asking a traveler to unlock their phone is similar to asking the traveler to open his/her suitcase. CBP feels it has the absolute right to request it. CBP's power to conduct border searches applies to both U.S. citizens and non-U.S. citizens. Although CBP cannot prohibit a U.S. citizen from entering the U.S., it can sure delay it. If a U.S. citizen refuses to provide the password to his/her electronic device, CBP can keep the device and still let the U.S. citizen enter the U.S. CBP can keep the device for as long as it wants.

However, it is important to remember that this option is limited to U.S. citizens. Any international travelers using visas who dare refuse CBP's request for a password to their devices will most likely be denied entry to the U.S.

It remains fairly rare for CBP to search a traveler's electronic device. CBP's published data shows that only 2,595 searches were made on electronic devices out of 34,103,063 international entries in March 2017, which is fewer than one-hundredth of one percent of all arriving travelers.

However, electronic device searches have occurred frequently enough that CBP actually has prepared a flyer called "Inspection of Electronic Devices" to be handed to individuals who have been subject to the search and whose devices have been detained. This is a clear signal that these types of searches will continue to happen.

Privileged and confidential information are subject to search

International travelers have long known that they can be searched at the airport before they are admitted into the U.S. However, CBP's extensive power of warrantless searches may surprise some U.S. citizens.

A traveler may not mind a Custom's officer searching all of his/her belongings because he/she has nothing to hide. However, being forced to unlock one's phone to share private emails, text messages, and photos is extremely intrusive, which would clearly require a warrant to be carried out within the United States.

Further, attorneys, doctors, and other business travelers often have privileged and confidential information on their phones and laptops. Subjecting their electronic devices to an intrusive CBP search could result in a breach of privileged materials or trade secrets.

To counter the threat, some suggest to designate a "travel device" when one travels internationally. The designated device should contain only a minimum amount of information, just enough for the business traveler to stay connected to the office and clients. There is wisdom to this advice, given that many business phones and laptops containing confidential information are lost or stolen every year during international business trips.

However, having a designated "travel device" may not be practical to many travelers. Other suggestions include cleaning your browser data regularly (you sure don't want CBP to know what you have been searching on the web); storing important information "in the cloud" that requires complicated passwords (it seems CBP will not ask you to login to your cloud storage system to do a search, and it is legally unclear whether they can force you to do that); and deleting files and emptying your trash bin regularly (a forensic search can probably recover the deleted filed, but a cursory search by CBP will not).

Conclusion

International travelers entering the U.S. should be very careful what data kept on their electronic devices because CBP officers will not hesitate for a second to search them.

Anything that may indicate inappropriate activities may result in denial of entry. U.S. citizens should be vigilant too and understand that the protection of the Fourth Amendment does not apply to even them at a U.S. port of entry.

Jared C. Leung is partner at Davis Miles McGuire Gardner, PLCC. He manages the firm's immigration practice group.