Border control agents at the airport have great leeway on what they can search from persons to belongings. The 4th Amendment of the Constitution protects against unreasonable searches. However, searches at the border fall under a special exception that allows border agents to have a greater ability to search you and your belongings.
In the age of electronic devices that store nearly our entire lives, the issue of how far the border search exception can reach into our digital world has not been fully settled. Thus, there is no uniform implementation and your experience can vary based on the airport and the border control agent. However, there are some general rules, precautions, and tips that you should know if you ever encounter this situation.
What Border Agents Are Allowed to Search
Border agents are allowed to search you and your belongings. As to your digital devices, they are allowed to ask for passwords to unlock your laptop and phone. You are allowed to refuse to provide a password to unlock your laptop or phone; however, this may lead to other problems. Agents can detain you to ask you more question, and if they deem it necessary, they are allowed to seize your devices, make copies of the digital content using forensic technology, and return the device to you weeks after your trip (and at times, the device is returned without any content). This is a double-edged sword dilemma: If you comply, they can scrutinize all the information on your device and ask you questions about anything they find from your social media posts to your emails. If you do not comply, they can escalate the encounter by asking you additional questions, detain you longer, and seize your devices.
Can they ask for your social media usernames and passwords? This is unsettled. There were recent media reports that travelers were being asked for their social media handles (i.e., their account names) to view the public posts. However, providing this information was only voluntary; travelers were not ordered to provide the information. Also, note that if you provide your passcode for your phone and you have apps with automatic logins, then border agents can look through your app accounts. Therefore, to avoid this situation, you may want to disable automatic logins for apps and delete social media apps from your phone.
How to Protect Your Rights
As mentioned, you can refuse to provide passwords to your digital devices, but then, border agents can subject you to more questions, seize your device, and use forensic technology to view contents on your device. However, there are ways that you can ensure that you are protected.
Assume that border agents ask for your social media password in order to access your posts and messages beyond the publicly available posts, what can you do? First and foremost, you want to avoid implicit consent. You should ask the border agent whether he or she is asking or ordering you to provide a password. If the agent states that he or she is only asking or that it is only voluntary, then politely decline to provide the information. If the agent states that he or she is ordering you to provide that information, then if you choose to comply, state that you are complying under protest and that you do NOT give consent to this search. This is a very important detail as it legally preserves your right to challenge the border agent’s actions. You should document the border agent’s name, badge number, and the agencies that you interacted with as well.
Second, if pressed for your login credentials for your social media, you can state: “You are welcome to look at the public information of my social media accounts. However, I will only give my social media password, upon issuance of a warrant. It is my intellectual property, and I need assurance of a warrant.”
Alternatively, you can state: “Access to my private social media information goes beyond your right under the border search exception. I will be happy to comply upon issuance of a warrant.”
How you handle this situation depends truly on your own comfort level. Do you believe in standing up for your rights, or do you want to make sure your trip is as hassle-free as possible?
There is no one-size-fits-all solution. You have to determine what approach is best for you based on your own risk factors. Some factors to consider include immigration status, privileged work information, travel frequency and history, etc. As to immigration status, U.S. citizens and Legal Permanent Residents (green card holders) cannot be denied entry if they refuse to provide access to digital information. Nevertheless, border control can still detain you longer for additional questioning and more probative searches of your belongings. Travelers with temporary immigrant visas (such as a visitor’s visa or student visa) can be denied entry if they refuse access to border agents.
For the next Justice360 Bulletin, we will discuss what precautions you can take before you travel to protect your digital information.
For more information about Justice360, visit www.muslimcongress.org/wp/j360.
Sister Najmeh is the Founder and Lead Immigration Attorney at ImmigraTrust Law (www.ImmigraTrust.com), an immigration law practice in Sacramento, California, representing individual and corporate clients in all 50 U.S. States and internationally. Sister Najmeh can be reached at Najmeh@ImmigraTrust.com.
Justice360 Legal Bulletins are meant to assist in the general understanding of the current law relating to the stated topics. JUSTICE360 LEGAL BULLETINS SHOULD NOT BE REGARDED AS LEGAL ADVICE. Organizations or individuals with specific questions should seek the advice of legal counsel.