The U.S. Border Patrol claims the right to search traveler laptops, thumb drives, cell phones, and other devices capable of storing electronic information.
When they call it a ‘border search” they can do this not just when you’re “crossing the U.S. border” in either direction (i.e. when you’re leaving, not just when you’re entering the country) but even “at the extended border” which generally means within 100 miles of the border, which encompasses where two-thirds of the U.S. population lives.
Three years ago the U.S. government adopted a policy that if you won’t give up the password to your electronic devices when entering the country, they can just keep your devices. And then last year they announced that they can create a central repository of traveler emails, and keep your data stored for 75 years.
So it’s no surprise that electronic device searches have been on the rise. Between October 2008 and June 2010 6500 devices were searched. In 2016 there were 10,000 device searches, and 30,200 in 2017. That hit 41,000 in 2019.
It looks like most of those searches aren’t legal. In November 2019 a federal judge in Boston ruled that forensic searches of cell phones require at least reasonable suspicion “that the devices contain contraband.”
And now the Supreme Court has let stand a 9th Circuit ruling that,
prohibits…fishing expeditions for intelligence or evidence of a crime — past or future, border-related or not..Instead, border officers now must limit their search for one thing: digital contraband — defined largely by the courts as child pornography, according to the ruling.
So far this ruling applies only to the jurisdiction of the 9th circuit: Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington State, Guam, and the Northern Mariana Islands.
If you don’t want your devices searched, consider entering and leaving the U.S. via these states and territories. Immigration can still “manually search the devices of anyone crossing, without any level of suspicion” however “they must only search for digital contraband, and only in places on the phone where such material would be stored.”
Should the government want to do a forensic search of your devices, they need “reasonable suspicion” which they’ll try to manufacture but they can’t just do it on a whim. And even so it can only be for digital contraband. Searches for investigative purposes require a warrant.
If the government manually searches your device for contraband and finds evidence of a crime in the process, they should stop the search and obtain a warrant (unless an exception to warrant requirements applies).