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Legal Update

Heightened US Border Scrutiny Focused on “Virtual Briefcase” Searches of Electronic Devices and Social Media

24 February 2017
Mayer Brown Legal Update

Multiple media reports have indicated that the US Department of Homeland Security (“DHS”), and in particular, Customs and Border Protection (“CBP”), is increasingly enforcing its longstanding ability to examine “virtual briefcases”—including, but not limited to, electronic data contained on personal devices such as mobile phones, laptop computers, and tablets. In many instances, officers may request personal identification numbers (PINs) and passwords to electronic files and social media.

The nature of these searches, including the fact that they are normally conducted without a search warrant or any other indication of suspicion, has raised concerns by members of Congress and garnered media attention for their intrusiveness to travelers seeking to enter the United States. These searches, however, have been deemed generally permissible by the US Supreme Court and were examined in detail in a 2009 Privacy Impact Assessment (“PIA”) prepared by DHS.

The PIA confirms that border officers may conduct searches of electronic devices as part of agency goals to interdict and investigate violations of federal law as well as to prevent the admission of contraband or inadmissible persons into the United States. During the inspection process, travelers are subject to an examination to determine their admissibility into the United States and an examination of their belongings for evidence of contraband or criminal activity. Federal law permits the search to be conducted without a warrant and without suspicion.

This legal standard was created in the pre-electronic era, but it is equally applicable to electronic devices. Similar to an officer’s right to inspect the contents of travelers’ briefcases and backpacks, an officer may inspect the contents of travelers’ electronic devices.

The repercussions of such searches continue to increase in an era when nearly every traveler possesses an electronic device connected to, among other services, emails and social media, and politicians and advocates have raised concern regarding the ease with which such materials can be inspected.

Absent compelling circumstances, we recommend cooperation with DHS. Failure to cooperate may result in delays in the inspection process and/or detention of the device(s). We also recommend employers ask employees to report to the employer if they have provided DHS officers access to privileged or business-sensitive data.

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