US Customs Agents Now Need 'Reasonable Suspicion' To Copy Data

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US Customs Agents Now Need 'Reasonable Suspicion' To Copy Data

The bottom line is that attorney-client, business and other sensitive information stored in an worldwide traveler's electronic device remains subject to search. 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.

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 worldwide airports and other USA borders.

CBP said the decision to review a travelers' electronic device would not be made at random, and would be requested by officers as part of their broader effort to evaluate whether to allow someone into the U.S.

Additionally, agents must have a "reasonable suspicion" of unlawful conduct in order to copy a person's data or use an external device to perform additional analyses-an "advanced search", as it's known.

Suspicion is the key element in distinguishing a "basic" search from an "advanced" one. However, officers connecting to the phone and copying files for analysis constitutes an advanced search.

The directive also distinguishes "basic" and "advanced" searches. In such cases, the officer must: (1) seek clarification from the individual as to the specific information protected by either doctrine; and (2) contact the CBP Associate/Assistant Chief Counsel office to ensure the segregation of any privileged material to ensure appropriate handling.

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

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

Impact: The new policy does not prevent officers from searching protected information.

Given the fact that USCBP may employ a broad range of tactics to compel a traveler to unlock their electronic device, refusing to do so on the basis that USCBP does not clearly have the lawful authority to search such devices may not be advisable, at least until the issue has been resolved by the courts. 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.

Officers must safeguard data during storage and conveyance.

Cocaine concealed inside a cabinet seized by United States custom officers from Area Port of Philadelphia.

"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", the agency said in a statement. There are no new procedures for handling sensitive information carried by journalists, though, except as otherwise provided in "any applicable federal law and CBP policy". This is based on the premise that there is a reduced expectation of privacy associated with global travel.

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