CBP: More fliers being asked to allow access to phones, devices

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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 new directive also raises some new concerns. A basic search involves reviewing the content of phone, while an advanced search involves connecting the device to external equipment to review, copy or analyze the contents. 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.

U.S. Customs and Border Protection (CBP) officers conducted 30,200 searches of travelers' electronic devices in the fiscal year 2017, up almost 60 percent from 19,051 in 2016, according to the newly published data.

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.

The agency said the increase was not the result of a policy directive but, rather, an indication that electronic devices are increasingly viewed as critical sources of information on potential security threats. The new directive thus gestures towards the standard imposed by the Ninth Circuit Court of Appeals in its 2013 decision in United States v. Cotterman.

Officers may only perform an advanced search if there is reasonable suspicion or for national security reasons. "However, this policy still falls far short of what the Constitution requires - a search warrant based on probable cause". There is a real question whether Cotterman remains good law. Like the old directive, it permits CBP officers to scroll through a traveler's cell phone, reading personal emails or texts and perusing personal photos and contact lists, on the basis of no suspicion whatsoever.

U.S. Customs and Border Protection
U.S. Customs and Border Protection

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.

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Officers must follow specific procedures when handling privileged or business-sensitive information.

Before a search, travelers may now be asked to turn off a device's connectivity to limit cloud information that is accessed. Then, working with CBP legal counsel, officers must attempt to segregate that information and handle it "appropriately".

Sen. Ron Wyden, D-Ore., a key ally of privacy rights groups, called the new CBP guidelines "an improvement" but said they're still too intrusive for US citizens.

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