Digital Privacy and Cross-Border Issues

Under the new administration, the Customs and Border Protection Agency (CBP) is enforcing immigration laws more strictly, thus making the entry landscape into the United States challenging and burdensome for foreign travelers. 

Every person entering the United States, regardless of citizenship, is subject to CBP inspection to assess admissibility under U.S. immigration law, unless they are exempt by diplomatic status. As a result, any individual, bag, or item entering the United States' customs jurisdiction may be subject to a CBP officer's inspection, which may include a search and confiscation of electronic devices. 

Anecdotal accounts of CBP's strict and occasionally overreaching enforcement include reports that non-U.S. citizens—including permanent residents—are being denied entry, removed under expedited processes, or detained upon arrival even though the regulations have not changed.  

Travelers who are not citizens of the United States must therefore make sure that all their entry documents are valid and in order in accordance with U.S. law. Travelers should also visit the U.S. embassy website to view the most recent policies and regulations pertaining to the necessary paperwork for entrance into the United States. 

Additionally, foreign visitors, including returning U.S. citizens, are facing growing digital privacy threats as a result of CBP's broad ability to conduct warrantless searches of electronic devices, which could create barriers to entry when they arrive at U.S. borders or ports of entry. While the Supreme Court is yet to decide on the issue of warrantless searches of electronic devices at U.S. borders, CBP officers are routinely conducting a “basic” or “advanced” search of travelers’ electronic devices. A “basic search” of an electronic device is done absent any level of suspicion, whereas an “advanced search” is done when there is reasonable suspicion of activity in violation of the laws enforced or where there is a national security concern. 

When a U.S. citizen refuses to allow a CBP officer to check their electronic device, they may still be allowed into the country, but the device may be confiscated to finish the search. However, a non-U.S. citizen will not be afforded the same treatment: if a border officer feels that access to the device is necessary to assess a person's eligibility for admission, a non-U.S. citizen who refuses to permit the search risks being refused entry. 

Employers and foreign citizens alike must therefore take action to reduce risks and manage data security concerns at the border. Among the helpful actions are: 

• Educating employees on the risk of a border search;
• Providing employees whose corporate devices are confiscated with the name and number of a company stakeholder to contact to report the situation;
• Identifying those stakeholders who have access to proprietary, confidential, or sensitive business information and establishing protocols that limit access to data stored on the device when those stakeholders are traveling.
• Evaluating their cross-border policies in light of stricter enforcement given that other countries also subject visitors to similar policies. 

It is vital for both individuals and businesses to create internal procedures to protect sensitive data when traveling across borders. Companies and foreign visitors entering the United States should be alert and prepared while entering the country and seek advice from immigration counsel to develop appropriate precautions, as border enforcement actions have become increasingly unpredictable.¹