On March 21, 2017, the Department of Homeland Security (DHS) released new restrictions on electronic devices carried on U.S.-bound direct flights from 10 airports in primarily Muslim countries. The ban prevents passengers from carrying on board electronic devices larger than a smartphone, including laptops and tablets. Electronic devices larger than a smartphone may be placed in checked luggage. The ban does not affect flights originating in the United States that are traveling to the 10 airports.
The overseas airports affected by the electronics ban are: Queen Alia International Airport (AMM), Cairo International Airport (CAI), Ataturk International Airport (IST), King Abdul-Aziz International Airport (JED), King Khalid International Airport (RUH), Kuwait International Airport (KWI), Mohammed V Airport (CMN), Hamad International Airport (DOH), Dubai International Airport (DXB) and Abu Dhabi International Airport (AUH).
What is the basis for the electronics ban?
Unlike the two previous Executive Orders issued by the Trump administration restricting international travel from certain Muslim countries, the electronics ban was issued directly by DHS. Citing intelligence indicating that terrorist groups continue to target air travel and smuggling explosives in carry-on items, the DHS has not elaborated on more specific threats. Although exact threats prompting the ban remain unclear, its limited application to only 10 airports and to only large electronic devices suggests it might be a response to a particular threat. Further suggesting that this ban is the response to a specific threat is the fact that the United Kingdom issued a similar restriction on the same day. The DHS has not indicated how long the ban will last, stating only that it will remain in place "until the threat changes."
How does the legality of the electronics ban compare to that of the recent travel bans?
Unlike the two previous travel bans, the electronics ban likely faces clearer legal waters. Each travel ban was swiftly challenged in court on grounds of improperly discriminating on the basis of religion and national origin, and violating the Establishment Clause of the Constitution. The challenges have resulted in both orders being blocked in federal court.
As discussed above, the electronics ban appears to be a response to a specific threat. If that is the case, the ban has at least some rational basis as a protective national security measure; a subject in which the courts have traditionally given wide latitude to the government. In addition, the ban does not target a specific religion or nationality; rather, it applies to anyone traveling directly to the United States from the 10 affected airports. All passengers traveling on direct flights to the United States from the 10 airports, including American citizens, are subject to the ban. It remains to be seen how the latest ban might fare in court, but it appears this one is here to stay.
How should businesses and business travelers respond to the electronics ban?
Given that the 10 airports affected by the new restriction include major business hubs such as Dubai, business travelers accustomed to working while traveling will certainly be affected. Some airlines have responded by beefing up in-flight entertainment options, while others, such as Emirates, have devised workarounds allowing passengers to use their laptops up until boarding, at which point they will be checked at the gate and stored with other checked baggage.
Like any items in checked baggage, stowing electronics in checked baggage presents risks of loss or damage to the devices and any data stored on them. The best way to minimize this risk is, of course, to avoid bringing the electronics on the flight at all. Alternatively, making sure to back up devices before flying, shutting down devices rather than putting them in sleep mode, and wiping sensitive business information from the devices can all help minimize the risk.
Our Immigration practice will continue to monitor and report on developments in this area.
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