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Customs Crisis: Can a Border Agent Legally Search Your Phone?

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Posted on March 10, 2017 8:00 AM EST

Picture of Customs Checking a Cell PhoneThere has been quite a bit of confusion regarding the recent Executive Orders signed by President Trump regarding immigration laws, and more specifically, your rights to travel within the United States. The news is spattered with terrifying tales of people passing through Customs, being detained, questioned, handcuffed, and missing flights both in and out of the country. For this reason, our Miami criminal defense lawyers would like to address the very challenging question of what your rights are when you are travelling – especially when dealing with border agents.

What Rights Do Border Agents Have?

Border agents, also known as Homeland Security Agents, are not police officers. The have a far greater legal authority to search and protect the United States. The biggest difference between an American border agent and a police officer is that a border agent does not need a judge's approval to perform searches and enforce other security measures.

This extends to searching suitcases and objects on your person, and most recently, it does go so far as to include your digital devices. That means that your laptop, your smartphone, and any other flash drives or electronics you carry are fair game.

A Smartphone Holds Sensitive Information

Yes – a smartphone contains extensive information, not only about you, but about other people you contact as well. Naturally, your concern over your private information is a bit justified – however, it's important to grasp the full weight of the situation here. The border agent, unlike a police officer, DOES have the right to search your cell phone or other electronics without a court order.

Border agents were first granted this right under the Obama Administration. (NY Times)

My Phone Is Locked – Do I Have to Unlock It?
Picture of an American Passport Before going Through Customs
If you have a fairly new smartphone, you probably enjoy some of the safety features like fingerprint screen locks and pattern screen locks or password screen locks. it's true, you do not have to unlock your phone. It may be tempting to give the agent the phone but refuse to unlock the device for them. While this thought runs through your mind, it's important to take into consideration the rights of border agents and the current homeland security policy.

If you comply with agents and unlock the phone, you are far more likely to make it onto your flight and get to your destination. If you do not comply, then border agents can detain you and question you extensively. They will also not reimburse your flight – that's up to the airline. Be prepared for that loss if you are going to cross a border agent.

Secondly, if you refuse to unlock your phone or laptop for the agents, they do have the right to seize the device and copy all your data. They are not required to return your equipment to you in any particular time frame, so you could go weeks without that smartphone or computer. Tread carefully.

How Far Do Search Rights Go?

At this time, border agents do not have the right to ask for social media account passwords, although once they have access to smartphones, in many cases they will have access. This policy has not yet been implemented.

If you are a US citizen, these search rights apply to you. If you are a foreign national or green card holder, you will face even stricter scrutiny and may or may not be detained while traveling.

How Can I Prepare?

One option is to use a burner phone at the airport. You could also remove access and delete apps on your device before getting in the airport, and avoid bringing any other electronic devices while you travel. This will limit your risk.

If you decide not to unlock your phone or laptop, you should most certainly contact a lawyer. Be prepared for the flood of questions that will bring – this is again, not a typical police situation, and your
Miranda rights do not hold the same power when you are crossing a US border.

Are You or a Loved One Facing Detention?

We may be able to help you prevent deportation or long-term detention. If you or someone you know is facing deportation as a result of criminal history, contact Donet, McMillan & Trontz at (305) 444-0030.


New York Times
Categories: Immigration
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