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Can U.S. Customs really demand and search your phone, other devices?

Felicia Persaud | 3/30/2017, 1:30 p.m.
For those who feel not being an undocumented immigrant or a green card holder leaves them safe as a U.S. ...
smartphone, iPhone Pixabay

For those who feel not being an undocumented immigrant or a green card holder leaves them safe as a U.S. citizen from Donald Trump’s executive powers handed to U.S. Customs and Border Protection agents—think again!

The Trump marching orders given to CBP agents at all borders now allow them to search and hassle U.S. citizens, green card holders and visitors alike.

This new power means they can demand your phone, computer and any other electronic devices you have with you at any U.S. border along with passwords to the devices.

As the CBP outlines in a tear-sheet it now provides to people at borders, they can seize and search your phone, and even make a copy of it to have forensic experts analyze its contents off-site.

So how can they conduct these actions, and aren't they violations of your constitutional rights?

Well, the law is tricky according to the American Civil Liberties Union. The Supreme Court decided in 1976 and 2004 that people have fewer claims to their Fourth Amendment privacy rights granted by the Constitution when entering the country because the government has to protect its borders.

Although the court has ruled that police can’t search people’s phones and electronics inside the country without a warrant because they contain troves of personal information, it hasn’t yet decided on a case about phone and device searches at borders.

Thus, the agents are allowed to search all electronic devices at any border crossing, no matter if they belong to an American citizen or not or whether they have any reason to suspect the person has committed a crime.

According to the ACLU, you can object to the search and not hand over your device and passwords, but unfortunately it won’t prevent the CBP from taking your devices.

Department of Homeland Security data show they have conducted 5,000 device searches in February 2017 alone!

CBP agents can decide to detain you for hours and make your life very uncomfortable if you refuse to hand over the devices and passwords. They can also hold on to your devices for five to seven days, or even weeks or months. Even journalists carrying sensitive information about their work or sources are not protected from this search, said the ACLU.

At the end of the day, your legal status in the country or just avoiding the hassle may force you to decide to hand over your device and password to a CBP agent if asked.

But note, if you’re a citizen, you can’t be denied entry into the country if you refuse to comply with a request to unlock your device or to provide a password. The same is true for lawful permanent residents.

Still CBP might hold on to your device for longer, seize it and not return it to you for weeks or months.

If you are not a citizen and are concerned about having your devices searched as a visitor, you should consult with an immigration lawyer about your particular circumstances before traveling.