In early January 2018, U.S. Customs and Border Protection (CBP) announced an updated policy for searching electronic devices at U.S. borders. The new directive supersedes a previous directive that was released in August 2009.
Under the policy, CBP agents—with or without suspicion—may conduct a “basic search” of electronic devices encountered at the border, including smartphones and tablets, by examining such devices and analyzing information visible on them. In contrast, CBP agents need to have “reasonable suspicion” or a “national security concern” to carry out an “advanced search,” that is, any search in which an agent connects external equipment, through a wired or wireless connection, to an electronic device in order to review, copy, or analyze its contents.
The updated policy allows CBP to detain a device and perform a basic or advanced border search at the border or at another location, ordinarily for less than five days. However, agents may only inspect information that is stored locally on the device, and must ask the traveler to disable network connectivity (or, where warranted, will themselves disable network connectivity).
The policy also creates procedures for privileged and sensitive information:
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information asserted to be, or identified as, protected by the attorney-client privilege or attorney work product doctrine must be segregated, including by using a “Filter Team” composed of legal and operational representatives who will be tasked with performing the segregation, but who will presumably otherwise avoid involvement in the investigation;
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other sensitive information, such as medical records and work-related information carried by journalists, must be “handled in accordance with any applicable federal law and CBP policy”; and
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business or commercial information must be treated as confidential information and protected from unauthorized disclosure.
According to the policy, travelers “are obligated to present electronic devices and the information contained therein in a condition that allows inspection of the device and its contents. If presented with an electronic device containing information that is protected by a passcode or encryption or other security mechanism, an Officer may request the individual’s assistance in presenting the electronic device and the information contained therein in a condition that allows inspection of the device and its contents.”1 CBP may use technical measures to bypass encryption or password protection. If an agent “is unable to complete an inspection of an electronic device because it is protected by a passcode or encryption, the Officer may . . . detain the device pending a determination as to its admissibility, exclusion, or other disposition.”2
CBP may seize and retain a device, or copies of information from the device, when, “based on a review of the electronic device encountered or on other facts and circumstances, they determine there is probable cause to believe that the device, or copy of the contents from the device, contains evidence of a violation of law that CBP is authorized to enforce or administer.”3 If, after reviewing the information on the device, there is no probable cause to seize the device, CBP must return the device and destroy any copies of the information obtained from it.
CBP searches are conducted pursuant to the “border search exception” under which searches and seizures at international borders are conducted without a warrant or probable cause. In 2011, the Ninth Circuit explained that “[i]t is well-established that the sovereign need not make any special showing to justify its search of persons and property at the international border.”4 Individuals do not “have a reasonable expectation of privacy [in property when it is presented] to customs officials for inspection at the border.”5 However, the government does not have “carte blanche at the border to do as it pleases absent any regard for the Fourth Amendment.”6 Specifically, “the Government must have reasonable suspicion to conduct highly intrusive searches of the person,” and “some searches of property are so destructive as to require particularized suspicion.”7
The Electronic Frontier Foundation (EFF) has criticized the new policy, in line with its prior critiques in this area. Previously, on September 13, 2017, the EFF and the American Civil Liberties Union filed a lawsuit, citing Riley v. California,8 on behalf of 11 travelers whose electronic devices were searched without a warrant at the U.S. border.9
Now, in response to the new policy, the EFF has specifically criticized the “national security concern” exception to the requirement that there be reasonable suspicion to conduct an advanced device search. Additionally, the EFF believes “the Constitution requires border agents to obtain a probable cause warrant before searching electronic devices given the unprecedented and significant privacy interests travelers have in their digital data,” that “it is inappropriate to have a legal rule hinge on the flimsy distinction between ‘manual/basic’ and ‘forensic/advanced’ searches,” and that “border agents must have a basis to believe that the device itself contains evidence of a violation of an immigration or customs law, not a general belief that the traveler has violated an immigration or customs law.”10
Critics of the policy will likely have ample opportunity to challenge it. CBP agents inspected 19,051 phones and other devices during fiscal year 2016, and 30,200 during fiscal year 2017. Additionally, the Supreme Court has recently become more interested in the boundaries of permissible electronic searches. Whether CBP’s policy meets the Constitution’s requirements will remain a particularly controversial topic until the Supreme Court weighs in directly on the issue.
1 U.S. Customs and Border Protection, CBP Directive No. 3340-049A, Border Search of Electronic Devices, 6 (2018).
2 Id.
3 Id. at 9.
4 United States v. Cotterman, 637 F.3d 1068, 1074 (9th Cir. 2011)
5 Id. at 1079.
6 Id.
7 Id. at 1079-80.
8 Riley v. California, 134 S. Ct. 2473 (2014) (the U.S. 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).
9 Alasaad v. Duke, No. 1:17-cv-11730-DJC (D. Mass filed Sept. 13, 2017), available at https://www.eff.org/document/alasaad-v-duke-complaint.
10 New CBP Border Device Search Policy Still Permits Unconstitutional Searches, Electronic Frontier Foundation, (Jan. 8, 2019), https://www.eff.org/deeplinks/2018/01/new-cbp-border-device-search-policy-still-permits-unconstitutional-searches.
