If you travel by plane, chances are you have already been subject to search by the TSA. However, in a growing number of states, all of your personal devices are on a list that the government can freely search at the border.
It has been revealed that the government is now searching through phones and laptops at the border and that in 9 states you can no longer freely leave your belongings with the government.
It’s no secret that the government has been given broad powers to search your devices and data at the border. But the question is, where does the government draw the line? In 2017, the Department of Homeland Security (DHS) and Department of Justice (DOJ) issued a joint statement announcing a change in the standard for border searches. Now, the department will stop searching devices that “are inoperable, in accordance with applicable law, or that are protected by a password or other such access control mechanism, or that have been subject to a court order or other legal process forbidding the search of the device or data on the device.”
In nine states, the government can no longer freely search your devices at the border.
on July 25, 2023 by Gary Leff
The United States Border Patrol claims the authority to search travelers’ computers, thumb drives, mobile phones, and other electronic equipment.
When they say “border search,” they mean not only when you’re “crossing the United States border” in either direction (i.e. when you’re leaving, not just when you’re entering the country), but also when you’re “at the extended border,” which generally means within 100 miles of the border and includes two-thirds of the population of the United States.
The US government decided three years ago that if you don’t give over the password to your electronic devices upon entering the country, they may hold them. Then, last year, they claimed that they might establish a central repository of passenger emails and retain your information for up to 75 years.
It’s no wonder that searches for electrical devices have increased. 6500 devices were scanned between October 2008 and June 2010. There were 10,000 device searches in 2016, and 30,200 searches in 2017. In 2019, that figure jumped to 41,000.
The majority of such searches seem to be illegal. A federal court in Boston decided in November 2019 that forensic searches of mobile phones must be based on at least a reasonable suspicion that the devices contain contraband.
And now the Supreme Court has upheld a 9th Circuit decision that, among other things,
prohibits…fishing expeditions in search of intelligence or evidence of a crime, whether past or present, border-related or not. Instead, border police must now focus their searches on one thing: digital contraband, which is primarily characterized as child pornography by the courts, according to the decision.
This decision now only applies to Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington State, Guam, and the Northern Mariana Islands, which are within the jurisdiction of the 9th Circuit.
Consider entering and exiting the United States via these states and territories if you don’t want your gadgets inspected. Immigration officers may still “manually examine the gadgets of anybody crossing without suspicion,” but “they must only look for digital contraband, and only in locations on the phone where such material would be kept.”
If the government wants to do a forensic search of your devices, they’ll need to have “reasonable suspicion,” which they’ll attempt to create, but they can’t do it on the spur of the moment. Even yet, it can only be used for digital smuggling. A warrant is required for searches conducted for investigation reasons.
If the government examines your equipment manually for contraband and discovers evidence of a crime, they should stop and seek a warrant (unless an exception to warrant requirements applies).
More From the Wing’s Perspective
The Fourth Amendment to the U.S. Constitution is designed to ensure that the government can’t search your phone or other electronic devices without a warrant. But if you go through customs after entering a major international airport, a border crossing, or a port of entry on the U.S. border, they do not need to get a warrant to search your phone or other devices. This lack of judicial oversight has been a major concern for travelers who are concerned that they could be the subject of a government search at the border.. Read more about can u.s. customs search your phone 2023 and let us know what you think.
Frequently Asked Questions
Does the 4th Amendment apply to border searches?
The 4th Amendment to the United States Constitution protects against unreasonable searches and seizures. This means that if a border agent stops you at the border and asks for your phone, they cannot search it without probable cause or a warrant.
What jurisdiction does Border Patrol have?
Border Patrol has jurisdiction over the United States borders, including the international ones.
What rights do you have at the border?
I have the right to enter and exit any country without restriction.
This article broadly covered the following related topics:
- border search authority
- border searches of electronic devices
- searches at international borders
- border search exception
- border search exception 100 miles