U.S. tightens rules on border search

U.S. tightens rules on border search

CBP said officers routinely conduct random inspections operations on global passengers and cargo and searches for narcotics, unreported currency, weapons, prohibited agriculture, and other illicit products.

On Sept. 13, 2017, the Electronic Frontier Foundation (EFF) and the American Civil Liberties Union (ACLU) filed a lawsuit against the federal government on behalf of 11 travelers (10 USA citizens and one lawful permanent resident) whose smartphones and other electronic devices were searched without a warrant at the United States border. CBP officers must destroy the password once the device is opened. A basic search involves reviewing the content of phone, while an advanced search involves connecting the device to external equipment to review, copy or analyze the contents. In that decision, the Supreme Court held that, given the significant and unprecedented privacy interests that people have in their digital data, the Police could not conduct warrantless searches of the cell phones of people they arrest. Indeed, recently published accounts of complaints filed with the federal government powerfully illustrate the humiliation individuals have experienced when forced to surrender their personal devices to the scrutiny of border officers. He called it "an improvement", but said in a statement that it still allows, "far too many indiscriminate searches of innocent Americans".

On Jan. 4, 2018, United States Customs and Border Protection (USCBP) issued an updated policy directive on border searches of electronic devices.

We have long argued that the Constitution requires the government to get a warrant before searching electronic devices at the border, and we support bipartisan legislation that would make that requirement law.

But Cotterman was decided before USA v. Riley, in which the Supreme Court required police to obtain a warrant based on probable cause before conducting a search of a cell phone seized in connection with an arrest. Officers, however, may only perform an advanced search if there exists reasonable suspicion of unlawful activity or a national security concern arises.

More news: Abbeville Police Department issues statement after teacher arrest

Given this new policy, what do travelers need to know to protect their privacy at the border? .

The new directive requires that officers appropriately safeguard information that is retained, copied, or seized, including keeping materials in locked cabinets or rooms, documenting and tracking copies, and generally safeguarding materials during conveyance.

In FY17, CBP conducted 30,200 inbound and outbound border searches of electronic devices, more than 29,200 of which were outbound searches.

The new directive also states that, "travelers are obligated to present electronic devices and the information contained therein in a condition that allows inspection of the device and its contents". CBP's prior policy did not impose the same obligation on travelers, although many reported that in practice CBP threatened to detain their devices if they refused to unlock them. Travelers who are not USA citizens or lawful permanent residents may risk being denied entry. The new directive outlines specific procedures if officers encounter or are informed of information protected by the attorney-client privilege or attorney work product doctrine.

Related Articles