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Hold That Call International Travelers: CBP Doubles Down on Airport Searches of Electronic Devices

MSK Client Alert
January 9, 2018

Many international travelers express surprise when, after arriving at LAX, JFK or other US airports or land borders, the US Customs and Border Protection (CBP) officer directs them to hand over their smartphone, laptop or related electronics device for a search. As disconcerting and invasive as it may be to have a uniformed total stranger work his or her way through one’s e-mails, photos and hard drive, one should be aware that it is generally within the authority of immigration and customs officials to conduct such searches. Just as one’s person and luggage is subject to search upon arrival to the US, so are one’s electronic devices. International travelers should be forewarned that these types of searches may become more commonplace than they already are. CBP reports that in 2017, it conducted more than 30,000 electronics device searches at airports and land borders, almost double the amount of searches it conducted in 2016. Now with a fresh policy in place, it is safe to expect this upward trend to continue.

On January 5, 2018, CBP Acting Commissioner (AC) Kevin K. McAleenan provided new guidance to its officers regarding such searches. In a lengthy, 12-page directive, the AC reminded his officers of the legality of such searches, noting that they are essential for the protection of national security and various law enforcement priorities. These searches may even be employed to determine whether a non-US traveler is attempting to enter the United States legally -- consistent with his or her purported visa classification. For example, a CBP officer may review and read the e-mails of an individual arriving with a tourist visa to determine whether he or she is truly entering the US for touristic purposes, or whether the traveler has another, illegal purpose — such as to work and live in the United States without the proper authorization. It is also important to note that the AC also indicated his directive applied to outbound international travel as well as arrivals.

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