Many of us have become accustomed to traveling with carrying a number of electronics when we travel. I will often have my iPhone, my iPad mini, and a laptop, as each serves a different purpose. I try to keep each as “clean” as possible, so that if one if stolen or lost, I’m losing just the physical hardware. My data is on my office desktop and backed up to a local hard drive and to the cloud, using Carbonite. But there is another reason that I try to keep my travel devices clean.
On December 31, 2013, in Brooklyn, New York, Judge Edward R. Korman handed down a decision in Abidor v. Napolitano that affects everyone who enters the US with a phone, a tablet, a laptop, a thumb drive, or basically any other device that stores information. This decision affirms the broad authority of US Customs & Border Protection (USCBP) to search electronic devices without reasonable suspicion of criminal activity.
In this case, on May 1, 2010, Pascal Abidor, a dual citizen of both the US and France, had his laptop seized by USCBP while traveling from Canada to the US. At the time, he was a graduate student working on his Ph.D. in Islamic Studies at McGill University in Montreal, Canada. He had files related to his studies on his computer. In the previous year, he had lived in Jordan and had visited Lebanon. USCBP kept his laptop for 11 days.
A few months later, David House had an experience similar to Mr. Abidor. On November 3, 2010, he was returning to the US on a flight from Mexico. David House had worked as a fund-raiser for the legal defense of Chelsea Manning (formerly Pfc. Bradley Manning), who is currently serving a 35-year sentence at the military correctional center in Fort Leavenworth, Kansas for releasing classified documents to Wikileaks. Earlier in 2010, US Immigration & Customs Enforcement had placed Mr. House into a lookout system that it wanted to search his electronic data upon reentry to the US. So they were just waiting for him to travel internationally, and hoping that he would reenter the US with his computer or other electronic media. The government kept his laptop and a number of other devices for 49 days.
Mr. House challenged the government’s right to search his electronic equipment on various grounds, including that he was targeted to be searched because of his work for and support of Manning, and that such was speech is protected by the First Amendment. In May 2013, the Federal government agreed to settle the lawsuit brought by David House.
Annually, USCBP performs 15 searches per day of electronic devices. Approximately fewer than 1 million people enter the US every day. So the chances that a person will be subjected to a search is relatively small. However, when entering the US, whether you are a US citizen or a foreign national, you should be aware that your electronic devices could be searched.
You may be thinking, well, I’m not getting my Ph.D. in Islamic Studies or working for Chelsea Manning. While the above described instances are scenarios that may not apply to the average person, you should keep in mind that any information that you carry with you when you enter or leave the US is evidence that can be reviewed, whether that information is in the form of a printed out piece of paper, an e-mail on your laptop, or an SMS on your phone.
Foreign nationals should understand the particulars of their current US immigration status and should be careful to maintain that status. For example, if you are coming to the US frequently as a tourist while married to a US citizen, you might be further questioned if you have a contract from a realtor regarding an upcoming purchase of a vacation cottage in the US saved to your desktop. An immigration officer might wonder if you plan to stay longer than allowed. Purchasing the house is legal, but entering as a visitor with the preconceived intent to stay long term can be considered misrepresentation.
Or if you are currently an F-1 student thinking about marrying your US citizen girlfriend (who you really only recently started to date), maybe you shouldn’t have just done a computer search for engagement rings just before you got on the plane from Europe to the US. Generally, the F-1 student status requires that you have strong ties to your home country. If an immigration officer looks at your internet history, the engagement ring searches could lead to questions about a girlfriend, and where does she live, and is she a US citizen, etc.
Or if you are currently an H-1B working for one company but looking around at other jobs, you might not want to leave an e-mail about a potential job offer with another company in your e-mail inbox. This could cause an immigration officer to wonder if maybe you have changed jobs without first getting the proper USCIS approval. While you must truthfully answer any question that USCBP asks, it makes sense to try to minimize any electronic or other documentation that could be misinterpreted!