Cell phone and laptop searches do happen but they are relatively rare. Although the Fourth Amendment right to be free of unreasonable searches and seizures is drastically reduced at a port of entry, as are expectations of privacy, U.S. Customs & Border Protection (“CBP”) has internal protocols requiring Officers to have some basis for the search. Below, we dive into the CBP protocols and what to expect if one of your employees is selected for a search. 

Probability: The risk of a laptop search is very low, around 1 in 10,000. CBP recognizes that a laptop and phone search is invasive. Further, CBP Officers do not want to unnecessarily interfere with and delay the flow of passenger inspections. 

Data Mining: CBP uses a variety of algorithms and databases to determine security threats and admissibility for immigration purposes. While a flight is inbound to the U.S., CBP systems query databases from the Federal Bureau of Investigation, Department of Homeland Security, Department of Justice, National Security Agency, Central Intelligence Agency, Interpol, and other government databases and may also review social media and other open source information. 

AI Algorithm: If the searches produce a hit, the CBP Officer conducting the primary inspection may refer your employee to secondary inspection, which can involve a more thorough interview and/or searches of bags and devices. There could be many reasons for a hit, such as countries visited or past criminal history. It might only take one hit to cause CBP to send someone to secondary inspection.

Detention of the Device: Cooperating with CBP and giving them the passwords to the traveler’s device is usually – but not always – best as they have the right to detain the device for additional inspection if they cannot unlock it. A basic search involves the CBP Officer looking at the device in the traveler’s presence. An advanced search involves the copying of the data from the device. 

Secondary Inspection: While U.S. citizens and permanent residents almost always must be admitted into the U.S., CBP can keep devices if they are not given the passwords to access the device. A search during secondary inspection can take anywhere from 30 minutes to 6 hours depending upon the reason for the search, its thoroughness, and staffing levels at the port of entry that day. With a few exceptions, the traveler is permitted to be present for that search.

Retention of the Data: Per a CBP directive, most of the data that CBP collects must be destroyed unless there is a valid law enforcement reason to keep it. In addition, CBP may only search data resident on the device, not information that is only stored remotely, but accessible from the device. For example, if your data is stored on iCloud but not on the device, CBP protocols do not permit searching it.

False Hit and Redress: In some cases, the CBP software can produce a false hit. For example, a traveler could have a similar name to someone who has a negative history or derogatory record in a U.S. Government database. If your employee suspects that the search was due to an error in identity, they can file a CBP Traveler Redress Inquiry Program (“TRIPS”) request to have CBP clear up the false hit. That is a simple process that sometimes works (but often does not and can take significant time).

Complaints: If your employee has a complaint about treatment in secondary inspection, they can file a complaint with the Office of Civil Rights and Civil Liberties at crcl@dhs.gov or with the DHS Office of Privacy at privacy@dhs.gov. Both have programs to address such complaints.

Caveat: The above is based on current CBP policies. With a new Presidential administration about to take office, it is possible that some of these policies will be changed, though we do not believe that is likely in this area. If changes occur, we will be sure to update this guidance.