Electronic Device Searches: New CBP Policy Directive
On January 8, 2018, CBP issued Directive No. 3340-049A in order to provide guidance and standard operating procedures for searching, reviewing, retaining and sharing information contained in electronic devices. Among the numerous minor procedural changes, the Directive outlines a few major developments:
- CBP is no longer permitted to access information stored on the cloud. The policy directive explicitly states that a border search includes the 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.” It also states that border agents may not use an electronic device to access information that is stored remotely. This means that cloud data is secure when crossing the border. In fact, it is now required that an electronic device be disconnected from any network prior to a search.
- The Directive distinguishes between “basic” and “advanced” electronic device searches. A “basic” search is defined as any search of an electronic device that is not an advanced search, and it requires neither a warrant nor any suspicion of wrongdoing. An “advanced” search is defined as “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.” An advanced search requires a reasonable suspicion of wrongdoing or a national security concern. It is important to note that reasonable suspicion is not defined in the Directive. However, it does state that “any 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.”
- The Directive also states that travelers are obligated to present electronic devices in a condition that allows inspection of the device and its contents. Failure to do so may result in detention of the device. In addition, CBP is permitted to seek technical assistance to access password protected or encrypted files without a warrant and without cause, and this may be done whether or not the device is detained.
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