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Traveling to the U.S.A. On Holiday: Digital Privacy at the Border

Can The U.S. Border Security Search My Devices?

The short answer is yes, they can. Searchers are governed by the Border Search of Electronic Devices Containing Information directive by the U.S. Customs and Border Protection Agency. It claims border security retains the right to search any and all electronic devices to detect evidence of “smuggling, contraband, and child pornography…and commercial crimes, such as…copyright, trademark and export control violations” as well as violations of immigration laws.

U.S. border agents can therefore request to search any electronic device possessed by someone crossing the border into the country and you must comply. While a recent case in the U.S. has held that searches of devices without warrants at the border violates the Fourth Amendment and are unconstitutional, it’s important to remember that decisions by one state don’t necessarily apply to the others. Since this decision was made in Massachusetts other states aren’t bound and previous practices of searching electronics per the Border Search of Electronic Devices Containing Information directive still stands.

Protecting Yourself?

Under s.5.1.4, you are permitted to be present while an agent searches your device. They don’t necessarily need to allow you see the search itself (that is, the screen of the device showing the information as it is viewed by the agents), as it may “reveal law enforcement techniques.”

Some information can also be an exception or require additional care when the search is performed. Business or commercial information may need to be treated as “business confidential” and must be protected from additional unauthorized disclosure. If you have business documents on your laptop and border agents request a search, the documents they find can only be disclosed to federal agencies that can protect privileged information. Something that may constitute legally privileged information, such as correspondence between a lawyer and their client, should only be searched with the advisement of the border agency’s legal counsel. If an Aitken Robertson lawyer crosses the border, additional security would be required to search their phone if they notify the border agent that their phone contains legally privileged information. This helps maintain the classified nature of the client’s information.

Keep Private Information Secure

The best way to ensure your private information maintains its privacy is to avoid keeping it on any devices you’ll be bringing across the border with you. If you’re being charged with a crime and believe anything on your phone or laptop could be used against you by the Crown before the courts, it’s best not to cross the border with that information still on your devices. Since the border agent is only able to search the device itself and not any remotely stored information, such as hard drives stored at your home or any information in cloud storage, you’re safe from border agent searches so long as the information isn’t on the device itself.

If you’ve received criminal charges and plan to visit the U.S.A. contact Aitken Robertson for a free 30-minute consultation. We’ll consider the details of your case to provide you with a quote for the costs of your legal defence and once we’ve been retained can advise you on how best to protect your information when crossing the border. Make sure you’re safe with your private information during your travels and happy holidays from Aitken Robertson.

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