U.S. Customs and Border Protection, the agency that manages the border, published new officer standards for searching electronic devices. We have noticed in recent months an increase in these types of searches (phones, computers, cameras, etc.), and related Question and Answer sessions.
Now, with its recent announcement, it appears that reported searches by the agency are up by about 50% for the fiscal year. The agency’s announcement focuses on the limited number of searches that are conducted. We hear of cases all the time where officers hold on to the phone for 15 minutes in another room. Given the confidential nature of information on phones, whether personal or business, it can be a significant invasion of privacy.
The new guidance limits searches from reaching into the cloud on devices. It also provides some lipservice to the protection of confidential information. However, the agency stands firm in its belief that it can conduct such searches. In the past, Senator Cantwell and others have proposed legislation to limit this authority to a more reasonable level, but the courts have largely upheld the authority under current law.
Here’s the announcement, which includes a link to the guidance to officers:
CBP Releases Updated Border Search of Electronic Device Directive and FY17 Statistics
January 5, 2018
CBP searches the electronic devices of fewer than one-hundredth of 1 percent of all arriving international travelers
WASHINGTON—U.S. Customs and Border Protection released today an update to the agency’s Directive governing Border Searches of Electronic Devices. This Directive, which supersedes the previous directive released in August 2009, enhances the transparency, accountability and oversight of electronic device border searches performed by CBP.
“In this digital age, border searches of electronic devices are essential to enforcing the law at the U.S. border and to protecting the American people,” said Deputy Executive Assistant Commissioner, Office of Field Operations, John Wagner. “CBP is committed to preserving the civil rights and civil liberties of those we encounter, including the small number of travelers whose devices are searched, which is why the updated Directive includes provisions above and beyond prevailing constitutional and legal requirements. CBP’s authority for the border search of electronic devices is and will continue to be exercised judiciously, responsibly, and consistent with the public trust.”
Noting the evolution of the operating environment since the 2009 directive was issued, advances in technology and continuing developments, along with the requirements of the Trade Facilitation and Trade Enforcement Act of 2015, codified at 6 U.S.C. § 211(k), Acting Commissioner Kevin McAleenan directed the review and update of the Directive.
In FY17, CBP conducted 30,200 border searches, both inbound and outbound, of electronic devices. Approximately 0.007 percent of arriving international travelers processed by CBP officers (more than 397 million) had their electronic devices searched (more than 29,200). In FY16, 0.005 percent of arriving international travelers (more than 390 million) had their electronic devices searched (more than 18,400).
The need for border searches of electronic devices is driven by CBP’s mission to protect the American people and enforce the nation’s laws in this digital age. 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. CBP border searches of electronic devices have resulted in evidence helpful in combating terrorist activity, child pornography, violations of export controls, intellectual property rights violations, and visa fraud.
Below is a month-to-month comparison for FY16 and FY17.
International Travelers (Inbound and Outbound) Processed with Electronic Device Search
FY 2016 FY 2017
October 857 2,561
November 1,208 2,379
December 1,486 2,404
January 1,656 2,760
February 1,484 2,303
March 1,709 2,605
April 1,578 2,275
May 1,626 2,537
June 1,487 2,304
July 1,656 2,359
August 2,385 3,133
September 1,919 2,580
Total 19,051 30,200
CBP is responsible for securing our nation’s borders, to include, among other things, ensuring the interdiction of persons and goods illegally entering or exiting the United States; enforcing the customs and trade laws of the United States; detecting, responding to, and interdicting terrorists, drug smugglers and traffickers, human smugglers and traffickers, and other persons who may undermine the security of the United States; and safeguarding the border of the United States to protect against the entry of dangerous goods. In furtherance of these critical responsibilities, CBP exercises its border search authority judiciously and in a manner that preserves the public trust.
U.S. Customs and Border Protection is the unified border agency within the Department of Homeland Security charged with the management, control and protection of our nation’s borders at and between the official ports of entry. CBP is charged with keeping terrorists and terrorist weapons out of the country while enforcing hundreds of U.S. laws.
January 5, 2018