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Customs and Border Protection's New Policy for Searching Devices Offers Thin Protection

Customs and Border Protection's New Policy for Searching Devices Offers Thin Protection

CBP counters that it "exercises its border search authority judiciously and in a manner that preserves the public trust" and that its warrantless searches have uncovered evidence that has been "helpful" in "combating terrorist activity, child pornography, violations of export controls, intellectual property rights violations, and visa fraud". It may include information and private messaging on social media platforms, data backed up to the cloud, and web-based email services if messages are not downloaded to the electronic device.

The agency said it searched 30,200 devices, but the inspections affected 0.007 percent of the 397 million travelers - American citizens as well as foreign visitors - who arrived from overseas during the 12-month period that ended September 30. That doesn't mean that travelers are forced to provide the passcode, but if they don't, the officer can detain the device for further and more thorough inspection.

The Supreme Court previously found that a routine search of any persons seeking admission to the USA, and their personal effects, may be performed without reasonable suspicion, probable cause or a warrant. 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. The new directive distinguishes between a "basic" and an "advanced" 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.

Officers must follow specific procedures when handling privileged or business-sensitive 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. According to the New Directive, USCBP officers will be permitted to examine this information.

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

A supervisor must be present, or at least notified at a later date, that an Advanced Search has been carried out.

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.

"As the world of information technology evolves, techniques used by CBP and other law enforcement agencies must also evolve to identify, investigate, and prosecute individuals who use new technologies to commit crimes", the agency said in a statement. "Congress should continue to press CBP to improve its policy". This is based on the premise that there is a reduced expectation of privacy associated with worldwide travel.


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