Whether your cellphone contains confidential business documents or you're packing homemade cranberry sauce, unless you're exempt by diplomatic status, you'll be subject to examination by officials from the Department of Customs and Border Protection. Air passengers also must abide by additional security protocols implemented in October to mitigate concerns about in-flight laptops. Since these latest measures are estimated to affect 2,000 daily flights to the U.S., it's a smart idea to review the rules and know your rights for a smoother journey.
While CBP directives assure travelers that searches are undertaken judiciously to protect 4th Amendment rights and privacy, the federal government asserts its right to search the contents of electronic devices without a warrant or individualized suspicion at international borders. This means government agents may detain anyone, their baggage and their personal devices at border screenings.
The number of electronic device searches more than doubled from 2015 to 2016, and CBP figures confirm that about 2,500 travelers – selected through a variety of law enforcement techniques – are now searched monthly. This amounts to "fewer than one-hundredth of 1 percent of all arriving international travelers," says Jennifer Gabris, a spokeperson for the Department of Customs and Border Protection. "Electronic media searches have produced information used to combat terrorism, violations of export controls, and convictions for child pornography, intellectual property rights violations and visa fraud," she adds.
The American Civil Liberties Union, in its helpful online "Know Your Rights: Travel" series, says the government's presumed authority to search your electronic devices such as laptops and cellphones, without individualized suspicion, is a contested legal issue. In September, the ACLU filed a lawsuit against the Department of Homeland Security on behalf of 11 travelers who had their electronic devices searched at the border in 2016 and 2017.
Nonetheless, travelers and border control personnel have a shared interest in safety and security. If you're going to be among the 380 million people the CBP estimates will cross U.S. borders in 2017, take advantage of these tips to make the experience less stressful.
Major airports recommend that U.S.-bound travelers arrive at least three hours prior to departure for enhanced security measures that may include in-person interviews, additional forms and other undisclosed measures. Also make sure travel documents, including permission letters for minor children traveling without both parents, are in order.
Know the Latest TSA Carry-On and Checked Baggage Rules
Even after luggage has successfully passed an airport security screening, it may be subjected to a secondary, more thorough inspection at officers' discretions. Familiarize yourself with the liquids restrictions and plan ahead by using the Transportation Security Administration's "What Can I Bring?" online search tool.
Understand Your Child's Rights
Parents can have their children excused from passing through an airport scanner, but they are not exempt from a pat-down by TSA agents. Children under 13 years may pass through security scanners with shoes, lightweight outerwear and headwear on. If you're traveling with a baby, there are other guidelines you should follow. The company Mamava, which designs portable privacy pods for nursing mothers, says breast milk, formula and juice can be carried on, along with an ice pack and breast pump, as long as they're sent through a TSA scanner. "If your breast milk is frozen, a visual inspection is usually fine," says Mamava's CEO Sascha Mayer.
TSA agents may want to test liquid formula, milk and juice for explosives, but you have the right to request that these liquids not be opened or X-rayed and opt for another screening procedure. If you consent, ask agents to wear sterile gloves before opening bottles. International carry-on regulations differ and should be confirmed by local consulates; for example, up to 2 liters of breast milk may be transported within the European Union after being scanned.
Answer Questions Honestly
Border officers may ask about your travels, activities, immigration status and possessions, including electronic devices. U.S. citizens with a valid passport do not have to answer officers' questions, but a refusal to do so may trigger a closer inspection. Noncitizen visa holders may be denied entry for refusing to answer questions from a border agent on any topic.
Pay Attention to Road Trip Rights
"At a U.S. Border Patrol checkpoint, an agent may question a vehicle's occupants about their citizenship, place of birth and request document proof of immigration status, how legal status was obtained and make quick observations of what is in plain view in the interior of the vehicle," Gabris says.
Ask for a Receipt
Border patrol officers will examine your electronic device with a supervisor present, if available, and require a supervisor's consent to copy its contents for future inspection. Additionally, CBP officers should provide a Form 6051D custody receipt if your device is retained for further inspection. Because the CBP is aware that travelers may have sensitive legal, commercial or otherwise privileged information on their devices, "our policy provides for additional procedures for officers encountering such materials," Gabris adds, highlighting referral to the CBP associate or assistant chief counsel. Inspection times for detained devices vary and, according to her office, usually do not exceed five days.
Exercise Patience and Understand the Risks
Foreign nationals and legal permanent residents must provide fingerprints when entering the U.S. Refusal to cooperate with an examination for any reason may lead to a secondary inspection and further delay. "U.S. citizens cannot be denied entry to the country for withholding the password to their device," says Esha Bhandari, staff attorney at the ACLU. "Whether to decline providing a password and risk staying longer at the border is a choice you have to make," Bhandari adds.
Carry Designated Travel Devices
Security experts recommend against carrying personal or confidential data on devices you travel with. However, attorneys at the Electronic Frontier Foundation warn that stripped bare electronic devices may themselves cause suspicion of criminal activity. The best precaution is to use full-disk encryption on your devices and backup data somewhere else, the EFF cautions.
Save time by joining Trusted Traveler programs such as Global Entry, or using Automated Passport Control and its mobile app to answer questions online, prior to arrival at major airports. Though business travelers routinely carry an attorney's phone number in case of trouble, savvy travelers who understand the rules at U.S. borders shouldn't worry about having a comfortable experience at border patrol.
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