If Border Agent Searched Your Phone, U.S. May Still Have Your Info

By Lisa M. Schaffer, Esq. on December 13, 2018 | Last updated on March 21, 2019

You may have had your phone unsuspectedly searched by federal agents when coming into America. And the data on your phone may have been downloaded to scan for national security information. Odds are high no incriminating data was found on your phone. But as it turns out, odds aren't so high that the border patrol deleted this data upon realizing you aren't a security risk.

Border Doctrine Allows for Some Searches of Phones

This process of searching and keeping data is not illegal. Under the Border Doctrine, warrants are not required to conduct some unintrusive searches at the border, since these searches fall under the highly prioritized right of national security. The Border Doctrine allows government officials to conduct routine searches at the border without probable cause, reasonable suspicion, or a warrant. International airports have long been viewed as the "functional equivalent" of a border, and so these searches are legal.

Federal Agents May Download Data but Policy Exists To Erase It

If an agent finds reasonable suspicion, based on a manual search of your phone, that there may be incriminating data on the phone, they are allowed to download your data on to a storage device. However, the U.S. government has a policy to erase that downloaded data once it is deemed legal, and as it turns out, many border agents have failed to meet policy guidelines. "Based on our physical inspection, as well as the lack of a written policy, it appears [Customs and Border Protection's Office of Field Operations] has not universally implemented the requirement to delete copied information, increasing the risk of unauthorized disclosure of travelers' data should thumb drives be lost or stolen," the Office of Inspector General wrote.

Number of Data Downloads on the Rise

Though the number of drives not erased has not been released, the incident of these warrantless searches is on the rise. According to Customs and Border Protection, there were about 5,000 border searches of phones and laptops in 2015. This number rose significantly in 2016 to 24,000, and continued to rise in 2017 to 29,000.

If you feel your personal information has been seized, in violation of your rights, contact a local civil rights attorney. Though the border patrol does have wide discretion in maintaining national security, it is not all powerful. There are constitutional limits to border searches of electronic devices. A lawyer can advise you of your rights, and best next steps to take to protect your privacy.

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