Customs and Border Patrol releases updated border search of electronic device directive

10 January, 2018, 01:31 | Author: Malcolm Fuller
  • U.S. Customs and Border Protection

CBP also released a new policy directive governing such searches, replacing guidance from 2009.

Your chances of being searched at a United States border crossing are now at an all-time high.

Agents are also prohibited from retrieving any information that is stored remotely, such as data stored in the cloud.

"CBP is committed to preserving the civil rights and civil liberties of those we encounter, including the small number of travelers whose devices are searched, which is why the updated Directive includes provisions above and beyond prevailing constitutional and legal requirements", John Wagner, the office of field operations deputy executive assistant commissioner, said. The directive defines "advanced" searches as those involving the use of external equipment to review, copy, or analyze the contents of electronic devices. However, "basic searches" conducted on the spot - which can expose travelers' photographs, contact lists, text messages, emails, and documents - can continue without individualized suspicion under the new directive.

In the month of August, agents searched the electronic devices of 3,133 travelers, according to CBP data.

The new directive still requires no suspicion at all when an advanced search implicates a "national security concern" - which is not clearly defined in the policy and is potentially vague enough to cover a wide array of scenarios - or when a search is not considered advanced. Officers are also required to obtain relevant supervisory approval for an advanced search.

But Cotterman was decided before US v. Riley, in which the Supreme Court required police to obtain a warrant based on probable cause before conducting a search of a cell phone seized in connection with an arrest.

Officers must follow specific procedures when handling privileged or business-sensitive information.

Given this new policy, what do travelers need to know to protect their privacy at the border? . CBP's directive asserts that travelers are "obligated" to present electronic devices in a condition that allows inspection of the device and its contents, and notes that an officer may "request" assistance from the traveler in accessing the device's contents.

U.S. Customs and Border Protection
U.S. Customs and Border Protection

Officers may ask travelers to unlock electronic devices.

Of course, many applications store synced copies of Cloud-based information on the device itself.

The USCBP does not now have the legal authority to compel travelers to assist them in unlocking an electronic device at the border.

CBP is allowed to search any device carried by any traveler as they enter or leave the US.

So, the USCBP does not now have the legal authority to compel travelers to assist them in unlocking an electronic device at the border.

Officers must safeguard data during storage and conveyance.

Two weeks ago, the Knight Institute and the New York Times published roughly 240 complaints by travelers detailing the "traumatizing" and "highly inappropriate" electronic device searches they endured at worldwide airports and other USA borders.

Impact: The requirements to safeguard data seized by law enforcement sets some baseline requirements for the government's protection of that information, but the policy also makes clear that relevant data can be used and shared in the course of a government investigation.

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