On July 24, 2024, in a landmark decision, a federal district Court in the U.S. ruled that searches of electronic devices at the U.S. border require a warrant and probable cause under the Fourth Amendment. Electronic devices include smartphones, tablets and laptops.
This ruling stems from the case of United States v. Sultanov and marks a significant shift from the traditional view of the border search exception, which allowed for routine device inspections without a warrant. The Court’s decision emphasizes the non-routine nature of electronic device searches and compared these searches to more invasive personal searches (that have long required judicial oversight).
Current authority to inspect
U.S. Customs and Border Protection (CBP) has historically operated under the authority to inspect all persons, baggage and merchandise entering or leaving the country and this included electronic devices. Travellers at the border could expect their devices to be examined, which might involve copying and retaining data. Non-compliance could lead to the detention of the device for further examination.
According to their website, CBP current stance on the issue is that “[a]ll persons, baggage, and merchandise arriving in, or departing from, the United States are subject to inspection by U.S. CBP. This search authority includes all electronic devices crossing our nation’s borders.”
These procedures aimed to have travellers treated with respect and professionalism during inspections – although processing was at the individual officer’s discretion. If a device was requested to be inspected, all apps and material were reviewable by an office and the contents could be used to deny entry if an officer felt an a traveller had misrepresented their reason for or intent on entry.
What this means for Canadian travellers destined for the U.S.
The Court’s decision underscores the balance between national security interests in the U.S. and an individual’s privacy rights – setting a precedent for how electronic devices should be treated at the border. The Court’s ruling may very well be the nudge needed in changing how travellers and their electronic devices are treated at the port of entry.
To learn more about how this issue could impact you and your organization while travelling to the U.S. please contact a member of the MLT Aikins immigration team.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.