U.S. Customs and Border Protection released an updated directive today governing border searches of electronic devices. This directive, which supersedes the previous directive released in 2009, would allow authorities to conduct “basic” searches of computers, mobile phones, and other electronic devices without “reasonable suspicion” that laws had been violated, although such suspicion or a “national security concern” would be required to conduct “advanced” searches.
“In this digital age, border searches of electronic devices are essential to enforcing the law at the U.S. border and to protecting the American people,” said John Wagner, CBP’s deputy executive assistant commissioner-Office of Field Operations. “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. CBP’s authority for the border search of electronic devices is and will continue to be exercised judiciously, responsibly, and consistent with the public trust.”
“In FY17, CBP conducted 30,200 border searches, both inbound and outbound, of electronic devices. Approximately 0.007 percent of arriving international travelers processed by CBP officers (more than 397 million) had their electronic devices searched (more than 29,200),” the agency said in a news release. “In FY16, 0.005 percent of arriving international travelers (more than 390 million) had their electronic devices searched (more than 18,400).”
The updated directive says that in a basic search, “an Officer may examine an electronic device and may review and analyze information encountered at the border, subject to the requirements and limitations provided herein and applicable law.”
“An advanced search is any search in which an Officer connects external equipment, through a wired or wireless connection, to an electronic device not merely to gain access to the device, but to review, copy, and/or analyze its contents,” the directive says. “In instances in which there is reasonable suspicion of activity in violation of the laws enforce or administered by CBP, or in which there is a national security concern, and with supervisory approval at the Grade 14 level or higher (or a manager with comparable responsibilities), an Officer may perform an advanced search of an electronic device.”
Civil liberties advocates said today that the updated directive is an improvement over the earlier guidelines but that it should better protect the civil liberties of travelers.
“I’ve said it before and I’ll say it again: Americans’ Constitutional rights shouldn’t disappear at the border. By requiring ‘reasonable suspicion’ before conducting forensic searches of Americans’ devices at the border, Customs and Border Protection is beginning to recognize what the Supreme Court has already clearly stated that ‘digital is different.’ It is my view that Americans will be safer when time and resources are spent on searching people with an actual cause,” said Sen. Ron Wyden (D., Ore.).
“However, there’s more work to do here. Manually examining an [individual’s] private photos, messages and browsing history is still extremely invasive, and should require a warrant,” Mr. Wyden added. “I continue to believe Americans are entitled to their full Constitutional rights, no matter where they are in the United States. That’s why Senator [Rand] Paul [R., Ky.] and I last year introduced [TR Daily, April 4, 2017] the Protecting Data at the Border Act, which would end the legal Bermuda Triangle at the border and require warrants for law enforcement officials to search Americans’ phones and laptops at the border.”
“It is positive that CBP’s policy would at least require officers to have some level of suspicion before copying and using electronic methods to search a traveler’s electronic device. However, this policy still falls far short of what the Constitution requires — a search warrant based on probable cause,” said Neema Singh Guliani, legislative counsel for the American Civil Liberties Union. “The policy would still enable officers at the border to manually sift through a traveler’s photos, emails, documents, and other information stored on a device without individualized suspicion of any kind,” Ms. Guliani added. “Additionally, it fails to make clear that travelers should not be under any obligation to provide passcodes or other assistance to officers seeking to access their private information. Congress should continue to press CBP to improve its policy.”- Paul Kirby, firstname.lastname@example.org