Your electronic devices may be searched at the border—here is what you need to know

Whether or not you are an EB-5 Green Card holder or US citizen, your electronic devices (for example, your phone) may be searched when you enter the United States. This article will give you some background on this issue and tell you what to do if this occurs.

The inspection of electronic devices at the border is a complex legal issue. A recent ruling by the United States Supreme Court held that a warrant was required to search electronic devices belonging to a person being arrested. However, the US Department of Homeland Security has maintained that this ruling does not apply to border protection. In other words, the Department of Homeland Security operates on the assumption that it has the legal right to search electronic devices of anyone entering the country, regardless of immigration or citizenship status.

Searches of electronic devices have become considerably more frequent in the last 6 months. According to data released by Customs and Border Protection, the number of searches has doubled. However, it’s important to note that searches of electronic devices are still rare. Officials claim that a fraction of one percent of travelers have their electronic devices searched at the border.

Politically, these searches have attracted controversy. Recently, a bipartisan group of US senators have introduced new legislation that would require Customs and Border Protection agents to obtain a warrant before searching a traveler’s electronic devices. If this bill becomes law, it is likely that searches will become even more infrequent.

So, if you are entering the United States and you are told that your electronic devices will be searched, what should you do? Ultimately, it is your choice. If you refuse the search, any one of several possibilities may occur: 

  • you may be detained until you consent to the search,
  • you may be arrested for obstruction of justice,
  • your electronic devices may be seized, and you will be let go, or
  • you may be barred from entering the country

Because refusing the search puts you at considerable legal risk, I generally advise that you consent to the search, unless you are concerned that it would incriminate you in some way.

As a final note, I want to reiterate that searches of electronic devices are still rare. It is highly unlikely that this would affect you when you enter the United States. And these searches may become even more rare if the law changes to require warrants, as many believe it should.

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