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. The new directive released Friday will require a heightened level of suspicion for certain searches, but it reasserts CBP's authority to conduct other searches without any level of individualized suspicion whatsoever.
According to CBP data, agents performed electronic searches on 30,200 travelers arriving in the United States in the fiscal year 2017. A lawsuit we filed past year along with the Electronic Frontier Foundation challenges these warrantless searches as unconstitutional on behalf of 11 travelers who were subjected to them. 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. He called it "an improvement", but said in a statement that it still allows, "far too many indiscriminate searches of innocent Americans".
Impact: This change appears to generally apply nationwide a reasonable suspicion standard to perform an advanced search, which conforms to heightened search requirements set by courts in some jurisdictions like the Ninth Circuit. Officers, however, may only perform an advanced search if there exists reasonable suspicion of unlawful activity or a national security concern arises. But even so-called "basic" searches can be incredibly invasive, exposing the intimate details of a person's life to government agents who never have to make a case for why they need to conduct the search. While the CBP spun the numbers one way, noting that they search the devices of less than one-hundredth of 1 percent of travelers entering the USA, and that the large majority (about 80%) of those are of non-citizens, the agency also acknowledged that the number of searches has jumped from 5,085 in 2012 to 30,151 in 2017.
Given this new policy, what do travelers need to know to protect their privacy at the border?
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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. Be aware, however, that even if you move content from your device to a cloud account, an advanced search of your device could still reveal deleted files and metadata.
Any agent may also keep copies of the information contained on an electronic device for a "reasonable" period of time to conduct the search, which "should not exceed five days".
Second, consider your options when deciding whether to provide a password to unlock your device.
"It is positive that CBP's policy would at least require officers to have some level of suspicion before copying and using electronic methods to search a traveler's electronic device", Neema Singh Guliani, legislative counsel at the ACLU, said in a. 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. 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.