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Imagine the scenario: You’re returning to the States after a trip abroad and Border Patrol seizes your laptop or other electronic device. Legal or illegal?

As with all litigious questions, there is no simple yes or no answer; it depends on a traveler’s history, associations and behavior. The explanation further depends on circumstances beyond the traveler’s control — such as agency protocol, level of terror threats in the United States, countries visited and US government-imposed restrictions.

Your Basic Rights

As an American citizen, you are afforded rights established and protected under the US Constitution and its amendments. This includes the First Amendment right to freedom of speech, association and assembly; the Fourth Amendment right to be free from unreasonable search and seizure; the Fifth Amendment right against self-incrimination and compelled speech; and the Fourteenth Amendment right against discrimination.

These are personal rights and you can waive them and allow the government access to your personal information and devices at the border if you choose. However, if you knowingly waive your rights and something criminal comes up as a result of your waiver, you may lose your right to defend yourself on these grounds. Please consider your own personal risks before consenting to a search, giving a statement or providing private information. Always err on the side of caution.

At the border, an agent cannot deny a US citizen entry into the United States. They can question and request to search you upon reentry to the US. They can also do a routine search of your personal items at the border. Your personal items include your laptop, phone and other electronic devices. A manual search of these items (powering on, objective looking without clicking) may be considered routine and reasonable, thereby permissible without a warrant. The agent may take possession of your equipment to conduct this search. The time of this search is whatever is “reasonable” — which isn’t defined in terms of hours or minutes, but rather on a case-by-case basis.

When Things Get Serious

Some things can trigger a heightened sense of suspicion and thus a more in-depth request to search a laptop or telephone. If there is an open investigation, for example, you might be required to undergo a forensic search; this generally means you showed some sign of suspicion (again, due to history, associations, or behavior). If you challenge this search, the agent may require a warrant. But without a warrant, the agent may take possession of your equipment to conduct this search and your items may be searched in depth at a different location utilizing specialized equipment. Additionally, this search can last several weeks, not to exceed the scope of what is reasonable. Any challenges you (as the searched person) wish to make for time, delay or lack of a warrant would have to be presented at a later date as part of a legal proceeding.

If you are concerned with the search and seizure of your personal electronic items, or believe your rights have been violated by a border patrol agent, contact an attorney right away. All traveler’s circumstances are different and the law in this area changes often; it’s important to protect yourself.

Travel Tips:

  1. Back up your data.
  2. Keep backups of your data and devices safe at home, offline.
  3. Use encryption.
  4. Log out of apps and use private browsing history prior to crossing the border.
  5. Utilize a password-protected cloud service. Store your information on the cloud and not your device.
  6. Bring as little data and electronic equipment as required for your travels; consider temporary devices for traveling.
  7. Do not lie.

Here are some helpful links to help you better understand your rights as a traveler re-entering the United States:

https://www.eff.org/wp/digital-privacy-us-border-2017

https://www.aclu.org/blog/free-future/can-border-agents-search-your-electronic-devices-its-complicated

Alexander Bachuwa is a New York attorney who focuses on consumer and international dispute resolution. For more information, visit the Bachuwa Law website or The Points Of Life, his travel blog.

Featured image by Omar Torres/Getty Images.

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