Can Border Guards Search Your Phone? Understanding Your Rights

If U.S. border officials confiscate electronic devices for inspection upon entry into the country, Canadians essentially have limited options for redress. immigration lawyers say.

This doesn't imply that there's nothing you can do to get ready, however.

The federal authorities updated their travel warning on Friday. Canadians should anticipate "close examination" when going through border checkpoints, which may involve extra questions and possible inspection of their electronic devices.

The revised warning informs Canadians who are refused admission into the U.S. that they might be held in custody while awaiting deportation.

Attorneys claim that the revision mirrors the stricter stance U.S. officials are adopting towards immigration laws under the Trump administration, not indicating any modifications to the legislation itself.

Primarily, they advise that Canadians anticipate extended waiting periods, more rigorous interrogations, and an increased likelihood of being denied entry. However, they also mention that there are methods to safeguard oneself.

"Definitely, the government is paying more attention now," stated Rosanna Berardi, managing partner at Berardi Immigration Law in Buffalo, N.Y.

For two decades, we have advised our clients that the authorities can inspect, take, and examine whatever they desire. Hence, ensure your narrative aligns with your evidence.

Canada's privacy watchdog states U.S. border agents “possess extensive authority that may encompass asking for the passwords to your laptop, tablet, or smartphone.”

These searches do not necessitate proof of misconduct, it cautions.

As Berardi pointed out, you do not possess any rights during a U.S. border crossing or pre-flight inspection, as these areas are considered an extension of that jurisdiction.

The U.S. Customs and Border Protection reports Its power to carry out searches on anyone “regardless of nationality” who enters or leaves the U.S. — established through prior decisions of the U.S. Supreme Court —"reaches to electronic gadgets passing through our country's boundaries."

"This isn’t a newfound capability for Americans," stated Warren Creates, who leads the Immigration Law Group at Perley-Robertson, Hill & McDougall in Ottawa.

Travelers are required to show their electronic devices along with the data contained within them "in a state that permits inspection of both the device and its content," according to the agency.

This involves supplying the required passwords to access that content.

If an individual trying to cross the border declines to surrender or unlock their phone, this might influence whether they are permitted to enter the U.S.; ultimately, this choice rests with the border agents’ discretion.

Visitors may have their entry refused or could be held for potential deportation.

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According to the law, border agents are allowed to examine only the data saved directly on a device when conducting a search. unable to utilize the device for remote data retrieval Or in "the cloud," as directed by a 2018 directive.

CBP officers will request travelers to disable WiFi and Bluetooth connections or switch their devices to airplane mode, according to the agency.

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Nevertheless, Creates mentioned that border authorities have the authority to examine individuals' emails, texts, and WhatsApp communications, along with any other data available on their devices. Additionally, they might review a traveler’s online footprint, such as posts on social media sites and platforms akin to LinkedIn, according to him.

What individuals post on social media may not align with the preferences of the official reviewing their case and could influence whether they're allowed into the U.S., according to Created.

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In the past two months, Berardi and Creates mentioned that they've noticed an increase in phone calls from their client base seeking comfort and guidance on preventing exclusion from the U.S. or getting held back.

"A massive wave of questions is overwhelming us as we try to manage them," Creates stated.

Berardi advised her clients that "things are pretty much normal, just expect delays and increased questioning from U.S. border officials."

We’re advising individuals to plan extra time and arrive one and a half hours early at the airport instead of just an hour if they usually travel. Ensure you have all the details clear; rather than stating ‘I’m heading to Atlanta,’ specify ‘I am traveling to Atlanta for a business conference which will be held at the Hilton Hotel located on Peachtree Street.’ This helps border officials smoothly process your admission into the U.S.

Creates said Canadians should be "very clear about the purpose of your trip" and ensure they have all necessary documents to prove their citizenship, residence and details of their travel to the U.S.

Berardi emphasized that this clarity extends to mobile phones and other electronics as well: "If you claim you’re heading to Las Vegas for the weekend yet your phone’s calendar shows business appointments in New York City, be clear about your intentions."

The Canadian privacy commissioner advises Canadians to delete pictures and other proofs of marijuana usage or purchase receipts from their gadgets, aligning with the drug's illegal status at the federal level in the U.S.

The American Civil Liberties Union suggests Foreign nationals can save and transfer any confidential information remotely onto an external hard drive or an online 'cloud' service prior to reaching the US border.

The ACLU recommends that travelers might want to use a dedicated "trip-only" device for their journey, one that does not store any personal or confidential information.

Canadian advocacy organizations such as the BC Civil Liberties Association have shared similar guidance.

When a device is confiscated for forensic analysis, travelers may ask for a receipt that provides details on how to retrieve their device.

In the end, attorneys advise that if travelers have nothing to conceal and can be patient when interacting with officials at the border, they should not encounter any problems aside from possibly experiencing a lengthier waiting period.

"I always advise clients to be cooperative, to be friendly, be balanced," Creates said. "None of us are perfect. So if there's an issue, anticipate it, deal with it if it comes up in questioning, including a possible criminal record deep into your past."

Berardi suggested that a border check ought to resemble a job interview: “if you arrive punctually, well-prepared, displaying professionalism...you will significantly ease their task, enabling them to swiftly proceed with the following traveler.”

—compiled with information from Global's Touria Izrid