Kilograms of Cocaine Seized at Port of Philadelphia

Kristopher Drake
January 10, 2018

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.

Two weeks ago, the Knight Institute and the New York Times published roughly 240 complaints by travelers detailing the "traumatizing" and "highly inappropriate" electronic device searches they endured at global airports and other us borders.

The government last week issued new rules governing its searches of electronic devices at the border on the same day that it revealed that such searches skyrocketed in 2017. The directive calls for the establishment of a "Filter Team" or other means of segregating legally privileged information from the information under search.

The directive also distinguishes "basic" and "advanced" searches.

"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.

Impact: The new policy does not prevent officers from searching protected information. This is because the law in this area is still unclear.

The number of searches of cellphones, laptops, tablets and other electronic data across US airports spiked from 2015 to 2016 and the upward trend continued a year ago.


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

Learn more: Can Border Agents Search Your Electronic Devices? Officers might also ask the individual questions about why they will not unlock the device.

"Travelers are obligated to present electronic devices and the information contained therein in a condition that allows inspection of the device and its contents", the new directive reads.

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. The threat of an extended delay, which may cause the traveler to miss their flight, could also compel some travelers to cooperate. For example, they could threaten to summarily refuse the traveller's admission to the U.S. If this occurs, it may also become more hard for the traveller to enter the U.S. on future occasions. CBP officers must destroy the password once the device is opened.

Fortunately, the New Directive formally clarifies that a border search should include an examination of only the information on the device itself and accessible through the device's operating systems or through other software, tools or applications. 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. Based on this policy, information privatelystored in the traveller's social media accounts should theoretically fall outside the scope of a USCBP search as well. The new directive also raises some new concerns.

If someone refuses to unlock a device, the device can be detained by CBP.

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