Have you ever travelled to a foreign country with your laptop or other electronic device? Are you planning to? These days, answers to these questions will almost unanimously be “yes.” But did you know that U.S. Customs and Border Protection (CBP) has the right to search – and if necessary, detain – your electronic device upon entry into the United States?
Recently, CBP provided statistics for the number of electronic devices that were searched during the first six months of FY 2017. In total, CBP searched 14,993 devices during this time. Compare this to the 189.6 million travelers arriving to the United States during that same time period, and you’re looking at a very low number of searched devices – 0.008 percent, to be exact. However, what’s interesting to note is that the number of searches is rising. Specifically:
- The number of searches jumped from 5,000 to over 19,000 from FY15 to FY16.
- During the first half of FY17, the number of searches was only 4,100 less than the total number for the previous year.
- Also during that timeframe, nearly 2,500 arriving passengers every month had their electronic devices searched by CBP.
Is it legal?
Absolutely! Customs is charged with ensuring compliance with federal laws at the border and has the legal authority to perform (with or without suspicion or probable cause) the inspection, examination, and search of vehicles, persons, baggage, and merchandise to determine if the merchandise is subject to duty or being introduced to the U.S. contrary to law. This authority extends to electronic devices and the information stored on those devices. The authority has been granted by Congress and has been repeatedly upheld by the courts, including the U.S. Supreme Court.
Last month, a lawsuit was filed by the American Civil Liberties Union and the Electronic Frontier Foundation on behalf of eleven (11) individuals. The suit claims that the plaintiffs’ First and Fourth Amendment rights were violated when U.S. Customs agents searched (and in some cases, confiscated) their devices without a warrant.
How does Customs search my device?
Before being granted entry into the United States, a Customs Officer and/or ICE Special Agent may perform a quick, cursory search of the electronic device in front of the traveler. This could entail asking the traveler to turn on the device, or turning it on themselves. If a password is required, you should enter it for the Customs Officer. (Refusing to provide the password is a “guarantee” that your electronic device will be detained.) If CBP and/or ICE are satisfied that no further examination is needed, then the electronic device will be returned to the traveler and he/she is free to enter the country. Customs may also examine the information on the electronic device outside of the presence of the traveler, but again satisfied that no further examination is needed, the passenger will be free to proceed.
However, Customs may also choose to detain your electronic device for further examination. In this case, you will be provided with a receipt for the device, and you will subsequently be contacted by telephone when the examination is complete. Travelers will be notified where the device can be retrieved (during regular business hours); or – if this is impractical – Customs will ship the device to the traveler’s designated location.
How does this affect me?
Think for a moment about the work device that you absolutely must have for your international trip. Do you know everything that has been saved on that device’s hard drive? Is any of the data controlled for export purposes? Are you sure?
If CBP were to find information that is marked “export controlled,” or any information which they believe to be controlled for export purposes, this data will be forwarded to the appropriate governmental agency for review. In the case of ITAR Technical Data, that agency is the Directorate of Defense Trade Controls (DDTC). For EAR controlled Technology, it would be the Bureau of Industry and Security (BIS). Once in their hands, these agencies can quickly establish whether or not an export authorization was required for the data on your device. In liaison with Customs, they’ll also be able to identify all of the international destinations where you took that device. If it’s determined that an export violation has occurred (or is suspected), then things can turn bad very quickly.
While you’re still busy explaining to your boss why your work laptop is gone, the U.S. Government could be planning and coordinating its next steps. This could include:
- Seizure of the device
- Directed disclosure
- Directed audits
- Criminal investigation
- Legal fees, fines, penalties, administrative settlement, criminal charges … and the list goes on and on
What can I do to protect myself and my company?
First, recognize that you basically have no legal defense to prevent a search from occurring. Instead, focus on how prepared you will be if/when a search occurs. For example:
- Most companies will designate “travel laptops” for employees. These devices remain clear of any export-controlled data. Their hard drives are regularly scrubbed to remove any information. (The Department of Defense recommends overwriting drives at least seven times.)
- End-to-end encryption of the data (following specific protocols) is a good idea and may help you with EAR-controlled Technology. Just recognize that, as of this blog post, the DDTC has not finalized its guidance for encryption, so that will buy you nothing when it comes to ITAR-controlled Technical Data.
- If an exemption or exception applies to your export to a certain country, be sure this is well-documented (and be prepared to provide evidence of this to Customs upon return).
- Remember that, even with the low percentage of searches occurring compared to the total number of travelers, this is not a lottery you want to “win.”
So, when planning your next international business or pleasure trip, remember your passport, your airline or cruise tickets, and your hotel reservations. But stop and think about your company’s work laptop or phone. It might be better to leave these at home.
Need help complying with Customs rules and regulations? Schedule a No-Charge Consultation with one of our experts to determine if there’s a good fit. We look forward to hearing from you soon!
Jim McShane is a Sr. Consultant, Trade Compliance for Export Solutions -- a full-service consulting firm specializing in ITAR and EAR regulations.