What Can They Search at the Border?
Courts in both the U.S. and Canada have granted customs agents VERY extensive rights to search, without probable cause, literally anything you have with you when you cross the U.S. / Canadian border. Their argument is that normal privacy rights do not apply because there is no fundamental or constitutional right to cross the border. U.S. courts have upheld the U.S. Customs and Border Protection’s right to perform searches that might otherwise violate a U.S. citizen’s Fourth Amendment rights.
Both the Canadian Border Services Agency (CBSA) and U.S. Customs and Border Protection (CBP) assert the right to search – and seize – any electronic or digital storage device such as laptops, tablets, discs, digital cameras, cell phones, and hard drives. Tens of thousands of phones and other electronic devices are searched every year. This right also extends to searches of documents, books, pamphlets and other printed material.
There is a steady flow of privacy court cases in both countries, so the law will continue to evolve. For example, a U.S. court case mandated that US CBP officers must have a “reasonable suspicion” of criminal activity before conducting comprehensive searches of laptops or other digital devices. However, whether that will hold up in later court rulings, and what those terms actually mean, will continue to be defined over time. Both the CBSA and CBP react to political and legal rulings by issuing directives that establish criteria for when they can conduct extensive searches.
Why Would You Be Searched at the Border?
Border officials have complete discretion as to whether to allow you to cross the border. Similarly, they can decide to undertake a search based on their own instincts. A search can also be triggered by something in your personal record. See our page on “What They Know About You” for a complete discussion on the types of information they have access to. If you have been flagged for things like a criminal record or a previous violation of a customs law, you may be subject to search on all your trips across the border. You can also be stopped and searched at random, or for something as simple as having a name that matches a person of interest in a national security database.
What Should You Do if a Border Search is Requested?
Be prepared and don’t lie. Unless you have some compelling privacy reason, do what the officer asks you to do. This is not a battle you are likely to win, and the risk of arrest is always present.
- If there is something you don’t want seen – then don’t have it with you. You can always use cloud services to store important information and access it later.
- Try to minimize the appearance that you are trying to conceal something. Pack your bags as neatly as possible. Wrap computer cables neatly so everything can easily be viewed at a glance and it does not look like something may be hidden. See our page on preparing for the customs inspection to make sure you are ready when you arrive at the border.
- At the border, turn your cellphones to airplane mode. Officers are supposed to ask travelers to shut off their signal. That’s to ensure remote files don’t get downloaded accidentally.
- Always make sure you have a backup of your digital media before you cross the border in case your laptop, cell phone, etc. is seized or damaged.
- Employers should provide clean devices and laptops for their staff when they’re traveling, and remember to back up any information on them.
Border agencies must document their searches, and statistics on the number and type of searches are regularly published. Travelers are generally allowed to be present during a search. You should be notified of the purpose for a search, although there may be national-security exceptions on those rights. You should also be given information on where you can complain if you are unhappy with border official conduct.
What Can They Search on Your Electronic Devices?
How far a border officer can go in a search is a legal gray zone that evolves with each major court case. These days, many of us keep a record of the most intimate details of our lives on our laptops, tablets and smartphones. Business people and photo journalists often transport much of their data, and their travel work product. For business travelers and vacationers alike, laptops, tablets and smartphones have become de facto electronic diaries. Whether all of that information is completely available to law enforcement is likely to be in front of courts forever.
Border agencies have successfully asserted the right to examine all files on all electrical devices including personal or business financial information, emails, music files, and lists of websites you have visited. You can be forced to open encrypted files or the government can take the time to do it themselves. Random searches are allowed. They may also also freely share the data from those computers — personal and business records, web-site visits, email — with other governmental entities.
If a foreign visitor doesn’t comply with a border official’s request, they are likely to be denied entry to the country. However, border agents cannot stop their own citizens from re-entering their country. You must be allowed to enter, even if you refuse to unlock your device or provide a password. However, they may then seize your devices and copy their content for on-site or off-site forensic tests. These tests can take weeks and sometimes months. Refusing to comply with their requests will likely mean you will be in for an extended search of all your other possessions and possibly hours of questioning. Worst case is you end up arrested.
- Passwords: This is an evolving part of the law, and refusing to provide your password could count as “obstructing” a search.
- Agents look at text messages, emails, photo albums and other personal data for evidence of terrorism links or criminal activity, such as child pornography.
- The cloud: The laws and regulations regarding information stored in the cloud are likely to evolve as technology changes. At this writing, are are limits on what agents can do. They can search the data that is apparent on the phone, but they can’t use the phone to access anything that might be stored remotely. If they have “reasonable suspicion” of illegal activity, they are allowed to search your phone further by looking at apps connected to the internet, or by copying the information in the device, using tools to gain entry, or confiscating the phone altogether.
- Sensitive info: lawyers, doctors, and journalists all have legitimate arguments about the need for confidentiality of their information. However, the US CBP has in the past stated that privileged and other sensitive material, including legal communications, are not “necessarily exempt from a border search.” Court cases continue to define how far those privileges extend.
- No compensation is provided for any losses suffered by the owners of laptops or other media as a result of its seizure, even if the contents are destroyed by government. A laptop can be held for over a year, and the owner may not be allowed to get a copy of the contents of their hard drive.
Search Tools Used by Customs Officials
In addition to simply physically searching your vehicle, border crossing officers also have a wide variety of technologies to detect hidden contraband. The tools range from sophisticated analytical computer databases to huge gamma-ray and X-ray imaging systems, radiation detectors, explosive detectors, and canine units. There are also sensors and cameras located along isolated stretches of border.
Large-scale systems at some ports are capable of imaging an entire truck or passenger vehicle for the presence of contraband. These systems include X-ray or gamma-ray imaging technology for cargo trucks, cargo containers, trains, palletized cargo, as well as fixed and mobile backscatter technology for passenger vehicles and buses. New technologies are continually being developed.
Small-scale systems are used to perform inspections on passenger baggage and cargo; view inside of fuel tanks and small compartments; identify density anomalies in the shells of vehicles, behind walls of conveyances, and propane tanks; and identify false walls in containers. System types include X-ray systems, density meters, fiberscopes, and tool trucks. There are detectors that can see powders, plastics, liquids, gels and things that a metal detector cannot.
Border Patrol searches away from the border
You should be aware that U.S. Customs and Border Protection agents have asserted the right to check anyone within 100 miles (165 km) of an international border. This places the entire state of Michigan within their search radius. In fact, over 70% of Border Patrol arrests occurred in cities, townships or villages that don’t share shoreline with an international border or waterway. 49% of Border Patrol arrests began with stops by a local or state police agency who then contacted the border patrol.
The have also maintained they have the right to conduct “outbound” inspections on drivers leaving the U.S. but before they reach the Canadian border. This is rarely done given limited resources, but does occur – for example, inspections were done on autos leaving the U.S. and heading to Vancouver at various times during the 2010 winter Olympics.
Finally, both countries are moving towards policies that allow law enforcement agencies from either country to pursue suspects onto the other country’s soil. In essence, U.S. police officers are being certified as legal Canadian law enforcement officers and vice versa. This is especially applicable to boating issues where suspects my try to flee across a difficult to identify border.