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CBP stepped up border searches of electronic devices previous year

CBP stepped up border searches of electronic devices previous year

CBP is authorized to search the cell phones, laptops, tablets and other electronic devices of any global traveler at the border, whether or not they are US citizens. A basic search is a cursory search of the device, which most courts have said does not require any suspicion or cause.

"This seizure is an excellent example of how Customs and Border Protection officers leverage imaging technology to detect and intercept an huge amount of cocaine cleverly concealed in a shipment of furniture", said Casey Owen Durst, CBP's Field Operations Director in Baltimore, the agency's operational commander in the mid-Atlantic region.

The new directive improves on the old one in some respects, but it fails to resolve the constitutional concerns that many have raised.

Impact: This policy, previously announced in 2017, appears to limit access to information stored exclusively in the cloud and not downloaded to the electronic device. If the USCBP officer is unable to complete an inspection of an electronic device because it is protected by a passcode or encryption, they may seize the device pending a determination as to its admissibility, exclusion or other disposition. This means that anything that can not be accessed without a data connection is off-limits to police officers in a "basic" search.

Fortunately, the New Directive formally clarifies that a border search should include an examination of only the information on the device itself and accessible through the device's operating systems or through other software, tools or applications.

CBP officers searched the electronic devices of approximately 0.007 percent of arriving worldwide travelers. The new directive thus gestures towards the standard imposed by the Ninth Circuit Court of Appeals in its 2013 decision in United States v. Cotterman. However, officers connecting to the phone and copying files for analysis constitutes an advanced search. There is a real question whether Cotterman remains good law. However, the new directive restricts them from searching anything that is stored in the cloud.

Officials said the pieces of furniture 256 bricks of a white powdery substance that tested positive for cocaine
Officials said the pieces of furniture 256 bricks of a white powdery substance that tested positive for cocaine

According to the new rules, CBP agents are allowed to choose, with or without suspicion, travelers for Basic Searches.

"I anxious that border officers would read my email messages and texts, and look at my photos".

If someone refuses to unlock a device, the device can be detained by CBP. This requirement appears to formalize a position the CBP Acting Commissioner took in response to inquiries from Senator Ron Wyden last June.

Officers must follow specific procedures when handling privileged or business-sensitive information. Then, working with CBP legal counsel, officers must attempt to segregate that information and handle it "appropriately". Information that is "solely stored remotely" (i.e. only in the cloud) is off limits, and to make sure that this limitation is complied with, officers will disable device connectivity to any network.

The ACLU said the CBP's policy change was "positive", but called for border checks to be brought into line with national laws.

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