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A recent decision of
the federal court of appeals in California (United States v. Arnold,
523 F.3d 941) held that U.S.
border officials may search information that is electronically stored on
devices such as laptops or telephones.
This new standard applies regardless of one’s immigration status
and arguably applies equally to U.S. citizens. Although this case arose during a secondary
inspection (after the traveler had passed the first immigration inspection
and proceeded to leave the airport after picking up his luggage), it is
expected that immigration officers will find authority in this new decision
to search at their discretion any device that stores information in
electronic form.
This new development might be particularly disturbing for
those traveling under the visa waiver program who have the burden to show
that they are not coming to the United States to work and do not intend to
remain more three months. Any minor
information found on their laptops or phones could be interpreted by the immigration
officers as evidence that they have not met their burden and, therefore, cannot
enter the United
States.
These travelers are customarily and immediately sent back to their
point of departure by the next flight.
At worst, they could be charged with misrepresentation which could bar
them from returning to the United
States for many years. Obviously, the search could also lead to
criminal charges. (Arnold was ultimately accused of
transporting and possessing child pornography).
Copyright © 2008 Choné & Associates. All rights
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