On January 4, 2018, U.S. Customs and Border Protection (CBP) released a new directive on border searches of electronic devices in order to provide guidance and standard operating procedures for searching, retaining, and sharing information contained in computers, tablets, removable media, mobile phones, cameras, and any other communication, electronic or digital devices subject to CBP border searches.
Border search authority is premised in part on a reduced expectation of privacy associated with international travel. In the interest of national security, border agents are afforded extraordinary powers of search and seizure that are not comparable to those given to the police under other circumstances. During the last fiscal year, CBP agents inspected 30,200 phones and other devices, which is a jump of more than 60 percent from 2016.
This new directive imposes certain requirements to ensure that the authority for border search of electronic devices is “exercised judiciously, responsibly, and consistent with the public trust”.
CBP agents are now instructed to demonstrate reasonable suspicion of unlawful activity or show that there is a “national security concern” in order to conduct “advanced” searches. The updated rules allow agents to continue to inspect information that’s stored on a device, not in the cloud. They cannot copy that information or connect to an external device to analyze the contents, unless they have reasonable suspicion of criminal behavior.
Border Searches
Searches of electronic devices may include an examination of only the information that is resident upon the device and accessible through the device’s operating system or through other software, tools, or applications. Officers may not intentionally use the device to access information that is solely stored remotely. Officers should take care not to take any actins that would make any changes to the contents of the device.
The Directive distinguishes between basic and advanced border searches. Within a basic search, Officers may examine an electronic device and review and analyze the information, subject to the requirements and limitations as set out in the Directive. Basic searches can be conducted with or without suspicion.
An advanced search is any search in which an Officer connects external equipment to an electronic device to review, copy and/or analyze the contents of a device. Advanced searches are only to be performed in instances where there is reasonable suspicion of activity in violation of the law, or where there is a national security concern. They must be conducted in the presence of a supervisor and should be conducted in the presence of the individual whose information is being examined unless there are security, legal or safety considerations that make it inappropriate to merit them to remain present.
Many factors may create reasonable suspicion or constitute a national security concern; examples include the existence of a relevant national security-related lookout in combination with other articulable factors as appropriate, or the presence of an individual on a government-operated and government-vetted terrorist watch list.
Review and Handling of Privileged or Other Sensitive Material
Direction is also provided to Officers encountering information they identify as, or that is asserted to be privileged or sensitive material.
The Officer is required to seek clarification, if practicable in writing, from the individual asserting this privilege as to specific files, file types, folders, categories of files, attorney or client names, email addresses, phone numbers, or other particulars that may assist CBP in identifying privileged information.
Prior to any border search of files or other materials over which a privilege has been asserted, the Officer will contact the CBP Associate/ Assistant Chief Counsel office and will ensure the segregation of any privileged material from other information examined during a border search.
Review and Handling of Passcode-Protected or Encrypted Information
If presented with an electronic device containing information that is protected by a passcode or encryption, an Officer may request the individual’s assistance in accessing the device in order to carry out the inspection of its contents.
Passcodes and other means of access obtained will only be used to facilitate the inspection of devices and information subject to border search, and will be deleted or destroyed when no longer. They may not be utilized to access information that is stored remotely.
If an Officer is unable to complete an inspection of an electronic device because it is protected by a passcode or encryption, the Officer may detain the device pending a determination as to its admissibility, exclusion, or other disposition
Detention and Review in Continuation of Border Search of Information
An Officer may detain electronic devices, or copies of information, for a brief, reasonable period of time to perform a thorough border search. The search may take place onsite or at an off-site location, and is to be completed as expeditiously as possible.
A copy of the Directive can be found here:
https://www.cbp.gov/sites/default/files/assets/documents/2018-Jan/cbp-directive-3340-049a-border-search-electronic-media.pdf