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U.S. Customs Can't Search Your Cloud Data on Border

By George Khoury, Esq. on July 18, 2017 | Last updated on March 21, 2019

In these modern times of planes, trains, and automobiles, crossing the border has never been easier. The U.S. border is crossed millions of times per year. However, the alarming new trend of customs and border agents demanding to search the contents of travelers' smartphones, has left many concerned about their privacy rights.

While the courts have ruled that border agents do not need a warrant to search a traveler's phone, there have been limits placed on the extent of the search. Another such limit was formally announced by U.S. Customs and Border Protection, when it explained that only locally stored data, and not cloud data, is subject to search at the border.

Is There Reason for Concern?

Keep in mind that the sheer volume of entries and exits makes the job of customs and border agents rather difficult and stressful. Travelers that are confronted with having their smartphones searched can expect border agents to look through photographs, videos, your music library, some of your email, and any other data that is stored locally on your phone, because they have to, not because they want to. But, basically, anything that can be accessed while your phone is in airplane mode, can potentially be searched.

The invasiveness of a smartphone search offends many travelers, but there may not be much that you can do. If you refuse to unlock your device, agents may detain your device in order to seek a warrant, or minimally try to coerce you to allow the search to avoid the bureaucratic red tape of getting your device back.

Can I Refuse to Provide Password?

At the border, refusing to provide your password could result in several different outcomes. Hopefully, an agent will just let it go, and let you just take your phone and go. However, refusing to unlock your device could result in your device being detained, along with yourself being detained, as well as more scrutiny, generally. Customs specifically explained that refusing to provide a password or pin would not be used as the basis to deny any U.S. citizen entry into the country so long as they have confirmed their identity.

If a search warrant is issued for a smartphone, and the owner refuses to provide the password, a contempt order can be issued by the court. Penalties for contempt can vary, but can include fines and jail time.

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