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According to immigration attorneys, there is an uptick in the search of electronic devices of incoming passengers by the US Customs and Border Protection (CBP) officers. However, most searches are basic. Against this backdrop, several bodies, such as the American Immigration Lawyers Association (AILA) and American Civil Liberties Union (ACLU), have issued FAQs. The CBP website also has useful information.
It is not just visa -holders that are subject to this search, it can even cover green-card holders and US citizens — but their rights differ. Here is a helpful guide:
Does CBP have power to search gadgets?
Yes, they have the authority to search electronic devices (including phones, laptops, tablets, and other gadgets) of anyone entering the US, regardless of legal status. These searches can occur at US land crossings, airports, and seaports. Crucially, these searches can take place without a warrant or suspicion.
What kind of search can they conduct?
CBP conducts two types of device searches. A basic search generally involves an officer manually reviewing the contents of a device without using any external equipment. If you’ve given the CBP officer your password or if your device is unlocked, they might conduct this kind of search on the spot. An ad vanced search entails an officer using external equipment to access, review, copy, or analyse the contents of a device.
The CBP officer must have a reasonable suspicion of a violation of law or a national security concern and preapproval of a senior manager before conducting an advanced search. In this case, CBP authorities are not required to return your device before you leave the airport or other port of entry, and they might choose to retain it for up to five days for a more thorough search.
In cases of ‘extenuating circumstances’ — an undefined term — they can retain your device for five days, with further extensions in seven-day increments. There are reports of some devices having been held for several weeks.
AILA suggests that incoming passengers should note the name and badge numbers of the CBP officer/s, and docu ment the questions asked. If the interview was recorded, passengers should ask for a copy of the transcript.
Do you have to disclose your password?
Non-citizens have fewer rights. Visa holders run the risk of being denied entry into the US if they refuse to provide a password to unlock their electronic device. A green card holder would have the right of hearing before an immigration judge — without which the green card cannot be revoked. A citizen cannot be denied entry into the US, but risks having the electronic device detained.
ACLU recommends that, if possible, the passenger should enter the password rather than divulge it to a CBP official. If not, be sure to change the password as soon as possible.
What happens if your device is detained?
In such a case, make sure you get a receipt (Form 6051-D), which should detail what items are being detained and your point of contact to enable you to follow up. Typically, the device is shipped to the passenger after examination.
Per ACLU, after the forensic search is conducted and there is no probable cause to believe the device contains evidence of a crime, the US govt says it will destroy any information it copied within 21 days. But CBP might retain the notes it took while searching your device or questioning you at the border. AILA suggests that devices such as laptops be inspected upon their return to scan for any unauthorised software or changes.
Remember to…
Travel light: Use dedicated travel devices with minimal personal data or sign out of sensitive apps that store personal data. Disable auto logins
Back up: Save important files in the cloud or external drive before travelling
Cloud access: Border searches are confined to information stored on the device and cannot access information stored remotely
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