If you are traveling abroad or returning to the United States, beware, the Fourth Amendment protections against warrantless searches do not apply to your electronic devices at the border–at least not yet. According to the American Civil Liberties Union (ACLU), U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) officers have almost unfettered authority to search your belongings at the border, including your electronic devices, whether you are a U.S. citizen or not. The number of electronic device searches at the border increased significantly from 2015 to 2017 according to the numbers provided by the U.S. Customs and Border Protection. Although U.S. citizens are not required to comply with a request to unlock their devices, the device can be seized for weeks or months, and the U.S. citizen may be detained for refusing the request. Visa holders and tourist may be denied entry if they refuse to provide a password. Furthermore, CBP is not required to return your device before you leave the airport, and they are also able to download and save the contents of your device.
To make matters worse, ICE just became the biggest client of a company that makes a device that can hack into locked iPhones. USCIS contracted with Grayshift, the maker of GrayKey, a device that can search locked iPhone devices of journalists, activists, and others. Despite Apple’s updates to block the use of the hacking device, GrayKey is still able to unlock Apple’s latest models. In the midst of competing technologies, unsettled laws, and increased searches, the following is a list of precautions that may be taken when traveling:
- – Travel with minimal data and devices- the less you carry, the less CBP can search
- – Consider traveling with a cheap device- travel with a device that serves only the necessary functions and does not contain any of your data
- – Disable fingerprint readers and/or encrypt devices with a strong and unique password
- – Shut down your devices when crossing the border
- – Use a two-step verification that is connected with a device you left at home- this will allow the verifying text to be sent to your phone that is left at home, and, therefore, the customs agent will be unable to login to your account(s) even if you did give up your password
- – Upload all your data to a cloud-storage account and then wipe the data off the devices
- – Notify the officers of any privileged material on your device- i.e. sensitive material, material covered by attorney-client privilege
If you have any questions about your rights against searches of your devices at the border, please contact Minsky, McCormick & Hallagan.