Courts have granted customs agents extensive rights to search, without probable cause, literally anything you have with you when you cross the U.S. / Canadian border. U.S. courts have upheld the U.S. Customs and Border Protection’s right to perform searches that might otherwise violate a U.S. citizen’s Fourth Amendment rights. Both the U.S. and Canadian border services assert the right to search – and seize – any electronic or digital storage devices such as laptops, tablets, discs, digital cameras, cell phones, and hard drives. U.S. Customs searches over 30,000 phones and other electronic devices per year.
What can they search on your electronic devices?
Border agents have successfully asserted the right to examine all files on all electrical devices including personal or business financial information, music files, and lists of Web sites you have visited. You can be forced to open encrypted files or the government can take the time to do it themselves. Random searches are allowed. They may also also freely share the data from those computers — personal and business records, web-site visits, email – with other governmental entities.
No compensation is provided for any losses suffered by the owners of laptops or other media as a result of the seizure even if the contents are destroyed by government. A laptop can be held for over a year and the owner may not be allowed to get a copy of the contents of their hard drive.
This policy covers all individuals without exception. Thousands of travelers have had laptops, cameras and cellphones searched and seized. This right also extends to searches of documents, books, pamphlets and other printed material. They have extended these searches to groups such as journalists, which may expose typically protected information such as confidential sources.
What should you do?
- If there is something you don’t want seen – then don’t have it with you. You can always use cloud services such as those provided by Google or Microsoft to store important information and access it later. This is your most effective way to protect sensitive information as the border services assert the right to search anything physically present on the device – but not in the cloud.
- Try to minimize the appearance that you are trying to conceal something. Pack your bags as neatly as possible. Wrap computer cables neatly so everything can easily be viewed at a glance and does not look like something may be hidden.
- Always make sure you have a backup of your digital media before you cross the border.
Border Patrol searches away from the border
You should be aware that U.S. Customs and Border Protection agents have asserted the right to check anyone within 100 miles (165 km) of an international border. This places the entire state of Michigan within their search radius.
The have also maintained they have the right to conduct “outbound” inspections on drivers leaving the U.S. but before they reach the Canadian border. This is rarely done given limited resources but does occur – for example, inspections were done on autos leaving the U.S. and heading to Vancouver at various times during the 2010 winter Olympics.
Finally, both countries are moving towards policies that allow law enforcement agencies from either country to pursue suspects onto the other country’s soil. In essence, U.S. police officers are being certified as legal Canadian law enforcement officers and vice versa. This is especially applicable to boating issues where suspects my try to flee across a difficult to identify border.
All of these policies are periodically challenged in the courts so there may be changes in the future, but as of this writing this is the law.
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