New guidelines: Border agents need ‘reasonable suspicion’ for ‘advanced’ device searches

Under updated guidelines, border agents must have “reasonable suspicion” of violations of law to conduct exhaustive forensic searches of smartphones, tablets and other electronic devices belonging to individuals entering and exiting the U.S. 

Customs and Border Protection (CBP) on Friday issued the updated guidelines for searches of electronic devices at the U.S. border, which contain new restrictions on the circumstances under which officials can conduct what are called “advanced” searches.

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These searches are those in which agents connect external equipment to a device in order to analyze or copy its contents.

According to the new directive, agents need to demonstrate reasonable suspicion of criminal wrongdoing or otherwise show that there is a “national security concern” in order to conduct advanced searches.

“Many factors may create reasonable suspicion or constitute a national security concern; examples include the existence of a relevant national-security related lookout in combination with other articulable factors as appropriate, or the presence of an individual on a government-operated and government-vetted terrorist watchlist,” the directive states.

Border agents are still allowed to manually search through devices — which could involve sifting through photos, browsing histories or messages — “with or without suspicion,” in what are called basic searches.

The new guidelines supersede a directive issued in August 2009 during the Obama administration and apply to searches of mobile phones, computers, tablets, cameras and virtually any digital device.

The Department of Homeland Security has encountered criticism from privacy advocates for its searches of electronic devices belonging to U.S. citizens entering the country, which are conducted without a warrant.

Lawmakers like Sens. Ron Wyden (D-Ore.) and Rand Paul (R-Ky.) have clamored for more restrictions on digital device searches.

In a statement Friday, Wyden described the new restrictions as an improvement but reiterated that a warrant should be required for searches on devices belonging to U.S. citizens. 

“Manually examining an individuals’ private photos, messages and browsing history is still extremely invasive, and should require a warrant,” Wyden said.

The American Civil Liberties Union (ACLU), which has sued Homeland Security on behalf of 11 travelers who had their devices searched, described the policy as a step forward but said it doesn’t go far enough. 

“The policy would still enable officers at the border to manually sift through a traveler’s photos, emails, documents, and other information stored on a device without individualized suspicion of any kind,” said ACLU legislative counsel Neema Singh Guliani.  

New data released by CPB shows that the agency conducted more than 30,000 border searches of electronic devices belonging to those exiting and entering the country in fiscal 2017, a 50 percent increase over the previous year. 

More than 29,000 international travelers entering the U.S. had their devices searched, compared with nearly 18,500 the previous year. Far fewer individuals had devices searched when leaving the United States.

CBP conducted device searches for the most travelers, 3,133, in August 2017, the only month that the count broke 3,000. Most months in 2017 hovered around 2,500. The previous year, the searches exceeded 2,000 during only one month.

Under the updated policy, border agents are allowed to detain an electronic device or copies of information on the device to perform a more thorough search. The directive says such detentions should not exceed five days “unless extenuating circumstances exist.” 

It also notes that an agent may ask a traveler to provide a passcode to unlock a device and says that an officer may “detain the device” if unable to complete the inspection because the device is passcode- or encryption-protected. 

“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 guidance says. 

John Wagner, the deputy executive assistant commissioner at CPB’s office of field operations, on Friday described electronic device searches as “essential” to national security and law enforcement at the border. 

“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,” Wagner said in a statement.

“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,” he said.