CBP releases new guidelines on phone, laptop searches at USA borders


"In this digital age, border searches of electronic devices are essential to enforcing the law at the US border and to protecting the American people", CBP official John Wagner said in a statement. Based on this policy, information privatelystored in the traveller's social media accounts should theoretically fall outside the scope of a USCBP search as well. In FY16, CBP searched the devices of 0.005 percent of arriving worldwide travelers.

The most impactful changes are that the CBP clearly defines what's a Basic Search and what's an Advanced Search for the first time.

The New Directive also does not address the issue of how long USCBP may delay the entry of a traveler in connection with the search of their electronic devices. This means that anything that can not be accessed without a data connection is off-limits to police officers in a "basic" search.

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.

There are two types of searches: basic and advanced. CBP officers must ask travelers to identify any privileged information. In such cases, the officer must: (1) seek clarification from the individual as to the specific information protected by either doctrine; and (2) contact the CBP Associate/Assistant Chief Counsel office to ensure the segregation of any privileged material to ensure appropriate handling.

Impact: The new policy does not prevent officers from searching protected information.

If someone refuses to unlock a device, the device can be detained by CBP. Today many devices are passcode protected or otherwise encrypted.

So, the USCBP does not now have the legal authority to compel travelers to assist them in unlocking an electronic device at the border.

CBP is allowed to search any device carried by any traveler as they enter or leave the US.

Officers must safeguard data during storage and conveyance.

Reuters A U.S. Customs and Border Patrol officer interviews people entering the United States from Mexico at the border crossing in San Ysidro, California, on October 14, 2016.

Impact: The requirements to safeguard data seized by law enforcement sets some baseline requirements for the government's protection of that information, but the policy also makes clear that relevant data can be used and shared in the course of a government investigation.

Sen. Ron Wyden, D-Ore., a key ally of privacy rights groups, called the new CBP guidelines "an improvement" but said they're still too intrusive for USA citizens.

How employees should deal with law enforcement requests related to business sensitive and attorney-client information. This is based on the premise that there is a reduced expectation of privacy associated with worldwide travel.