The U.S. Customs and Border Patrol Agency has a policy that allows for searches of any possession, document or thing, including any electronic storage device, such as a CD or disks, a USB key, a laptop, a cell phone, an MP3 player or any other mobile device. This policy has raised alarms among many people in Canada, including many members of the business and legal communities, because such searches may be done without any grounds or suspicion, simply because the person being searched is entering or leaving the U.S.

This policy outlines how and why a U.S. Border officer may search you or your belongings when you cross the border. The legal and business communities in Canada have been quite vocal in their concern, in large part because there is no protection for information that is solicitor-client privileged or confidential business information – and even your laptop or phone may be seized when you cross the border.

Key facts and issues regarding this topic include:

  1. Border searches can be done without individualized suspicion, on any individual attempting to enter, re-enter, depart, pass through or reside in the United States.
  2. Officers may examine, review, analyze the information in documents, books, pamphlets, and other printed material, as well as computers, disks, hard drives, and other electronic or digital storage devices.
  3. Officers may detain originals or copies of documents and electronic devices for a reasonable period of time to perform a thorough search, on or off-site.
  4. Where there is no probable cause to keep the information detained, it will be destroyed (except that the CBP may retain documents relating to immigration matters).
  5. If an officer determines there is probable cause, based on a review of the documents or devices or other facts and circumstances, he or she may seize and retain the originals and/ or copies.
  6. Copies of documents or devices may be shared by US Border Control with federal, state, local and foreign law enforcement agencies to the extent consistent with applicable law and policy.
  7. Confidential business information can be seized, but officers are supposed to take all reasonable steps to treat any business information encountered as confidential and a trade secret, and prevent unauthorized disclosure.
  8. Sealed lettermail may not be opened or read unless they get a warrant or consent. But DHL, UPS, FEDEX are not considered to be mail and are therefore subject to border searches.
  9. Because legal materials could be subject to solicitor-client privilege, they will be exempt from seizure but can be subject to special handling:  if an officer suspects that correspondence, court documents and other legal documents may be privileged and may be evidence of a crime or other issues within U.S. Border Patrol jurisdiction, he or she must seek legal advice prior to searching the document.
  10. Identification documents such as passports, driver’s licenses, ID cards etc. can be copied for legitimate government purposes even if the border guard has no suspicion that you are engaged in illegal activity.

The U.S. Customs and Border Patrol policy was recently challenged, and in a decision dated April 2008 and amended in July 2008, the U.S. Circuit Court said that reasonable suspicion is not needed for customs officials to search a laptop or other personal electronic storage devices at the border.

Related Information

Statement of Jayson P. Ahern, Deputy Commissioner, U.S. Customs and Border Protection Department of Homeland Security, Before The Senate Committee on the Judiciary Constitution Subcommittee, “Laptop Searches and Other Violations of Privacy Faced by Americans Returning from Overseas Travel”, Washington, DC, June 25, 2008