Customs and Border Patrol releases updated border search of electronic device directive

Federal officials in Philadelphia recently seized more than 700 pounds of cocaine hidden in the walls of bedroom furniture and kitchen cabinets

Federal officials in Philadelphia recently seized more than 700 pounds of cocaine hidden in the walls of bedroom furniture and kitchen cabinets

The directive defines "advanced" searches as those involving the use of external equipment to review, copy, or analyze the contents of electronic devices.

CBP said officers routinely conduct random inspections operations on worldwide passengers and cargo and searches for narcotics, unreported currency, weapons, prohibited agriculture, and other illicit products.

CBP released an updated policy directive earlier this month, which provided clarified guidance and standard operating procedures for searching, reviewing and retaining information found on these devices. Officers are instructed to ensure the device is in "airplane mode" or a similar offline state to avoid accessing information that is exclusively stored remotely, such as on a cloud-based service. If the traveler does not disable the network connectivity themselves, the agent will, according to the policy. In other words, CBP now claims the authority to ask travelers for their passcodes and seize the devices of those who refuse. Nevertheless, the New Directive makes clear that USCBP officers will continue to ask for passcodes and other means of access in order to inspect electronic devices.

He noted that CBP agents don't need even the "reasonable suspicion" threshold to conduct a basic search of devices, which includes, "looking through their browsing history, photos and messages stored on the device".

As The Voyage Report covered in September, 10 U.S citizens have filed a lawsuit against the Department of Homeland Security, which oversees the CBP, seeking to block the warrantless searches of travelers' electronic devices at the US border. However, the agency will also keep a copy for "purposes of complying with a litigation hold or other requirements".

Officials said the pieces of furniture 256 bricks of a white powdery substance that tested positive for cocaine
Officials said the pieces of furniture 256 bricks of a white powdery substance that tested positive for cocaine

Amid the continuing increase in the number and scope of warrantless searches, civil rights groups such as the American Civil Liberties Union (ACLU) are challenging the legality of the inspections in court.

The Supreme Court previously found that a routine search of any persons seeking admission to the US, and their personal effects, may be performed without reasonable suspicion, probable cause or a warrant.

On Sept. 13, 2017, the Electronic Frontier Foundation (EFF) and the American Civil Liberties Union (ACLU) filed a lawsuit against the federal government on behalf of 11 travelers (10 US citizens and one lawful permanent resident) whose smartphones and other electronic devices were searched without a warrant at the United States border. A lawsuit we filed a year ago along with the Electronic Frontier Foundation challenges these warrantless searches as unconstitutional on behalf of 11 travelers who were subjected to them.

Until now, Customs and Border Protection claimed the authority to demand travelers turn over their phones, laptops, and other devices to be searched at border crossings, including airports, without any suspicion of wrongdoing. If officers are unable to conduct their search due to a locked device, they are expressly permitted to detain the device (subject to time and supervisory approval limitations) to complete their inspection. About 80 percent of searches are conducted on non-US citizens, according to ABC News.

Agents discovered 256 bricks of cocaine in total.

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