Can CBP search my computer when I arrive in the U.S.? The Evolving Border Search Doctrine in the Age of Trump

The 4th Amendment and the Border

The right to be free from “unreasonable searches and seizures” absent a judicial warrant is constitutionally ingrained in our 4^th Amendment. . . but this right is not absolute. One notable exception is that the 4^th Amendment does not apply at the border, which includes land ports of entry into the U.S. as well as international airports (air ports of entry into the U.S.). This notable exception is called the Border Search Doctrine (“BSD”), and is based on the idea that the government has a paramount right to ensure that both people and the goods they bring with them are permitted to enter the U.S. under our immigration and customs laws. While the rationale makes some sense, the breadth of the BSD is growing based both on a more aggressive search policy under Trump and based on how technology is changing the parameters of what is subject to search.

CBP (customs and border protection) has taken the position for some time that they have the right to search computers, phones and other electronic devices. While they maintain that they rarely use this power, and only do so when they have reason to question whether a person is admissible, they maintain the right to search these devices absent any suspicion whatsoever.

Technology and Privacy

Additionally, they are also taking the position that they have a right to request both your social media user name and your passwords to access your computer or phone. As an U.S. citizen (remember, the BSD also applies to U.S. citizens), you can refuse to give CBP this information and they will not deny your entry into the U.S.; however, they may seize your computer and phone and attempt to access the information without your assistance. If you are not a U.S. citizen, and you refuse to grant them access to your devices, they may deny your entry into the United States since it is the burden of the foreign national to establish that they are admissible to the U.S. The policy is a little less clear for Lawful Permanent Residents who refuse to grant access to a device.

CBP has stated that they will not search information located solely “on the cloud” or external servers. However, this position is cloudy (pun intended) since cloud based applications (like Dropbox) both maintain the information on the device as well as the cloud. Whether these policies remain so broad, or are narrowed by the Courts, is to be determined as the breadth of information that CBP can access continues to expand based on technology.

The New York times ran a good article on this topic earlier this year, titled “What Are Your Rights if Border Agents Want to Search Your Phone?”

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