CBP Releases Guidance on Search of Electronic Devices31 Jan 2018
U.S. Customs and Border Protection (CBP) issued an updated directive on border searches of electronic devices belonging to individuals entering or exiting the United States. The directive provides guidance on operating procedures for CBP agents searching travelers’ electronic devices. The directive states that the searches are conducted as a part of CBP’s immigration responsibilities, among other things. The searches are part of a long-established practice, but the directive provides some insight as to the related process and procedures.
Purpose of the Searches
The CBP directive indicates that the purpose of the searches is to protect national security and to detect crimes, ranging from smuggling and child pornography, to commercial crimes, such as copyright and trademark infringement. The searches are also designed to help CBP determine a foreign national’s intentions upon entry relevant to the individual’s admissibility under U.S. immigration laws.
Per the directive, a CBP officer may conduct a basic search without suspicion of any traveler, including a U.S. citizen, lawful permanent resident, or a nonimmigrant, entering or exiting the United States. The search may include an examination of the individual’s electronic devices, but is limited to the information on the device and “… accessible through the device’s operating system or through other software, tools, or applications.” The CBP officer may not use the device, however, to access information that is solely stored remotely. Accordingly, the officer will normally request the traveler to disable its connectivity (e.g., place the device in airplane mode).
An advanced search of the electronic device can only be conducted if the officer has reasonable suspicion to do so. With an advanced search, the officer may connect the device to external equipment that will allow the CBP to “… review, analyze, and/or copy its contents.” This information may be stored for up to five days.
The CBP has had the authority to search travelers, and their respective electronic devices, for some time. Still, this directive provides insight into the motivation behind these searches, as it specifically states that one reason for the searches is to enforce immigration laws. Further, the directive provides clarity to travelers as to what exactly they can expect if their electronic devices are searched.
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