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New US customs guidelines limit agents from accessing remote data on electronic devices

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In response to a nearly 60 percent spike in searches of electronic devices, customs agents are now prohibited from accessing information that is not stored on the device itself, such as cloud data.

US Customs and Border Patrol (CBP) issued a new policy directive on Friday that creates a distinction between “basic” and “advanced” searches of electronic devices. 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.

Under the new rules, an agent can only perform an advanced search if there is a “national security concern” or “probable cause to believe the device, or copy of the contents from the device, contains evidence of a violation of law that CBP is authorized to enforce.”

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The policy states that without probable cause, agents may only retain information related to immigration, customs, and other enforcement matters.

“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,” John Wagner, the Deputy Executive Assistant Commissioner at the Office of Field Operations, said in a statement.

Agents are also prohibited from retrieving any information that is stored remotely, such as data stored in the cloud. In order to prevent agents from accessing remote information, travelers will be asked to disable their network connection, such as putting their phone in airplane mode, before presenting their electronic devices. If the traveler does not disable the network connectivity themselves, the agent will, according to the policy.

If an agent is presented with an electronic device that is locked with a passcode or any other security mechanism, they can ask the traveler to unlock the device. If the agent is still not able to unlock the device, they may detain the device and seek technical assistance to search the contents. 

“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. 

Any agent may also keep copies of the information contained on an electronic device for a “reasonable” period of time to conduct the search, which “should not exceed five days.” 

However, agents can detain a device for more than 15 days with the approval of the director of field operations, the chief patrol agent, the director of air operations, the director of marine operations, the special agent in charge or any other equivalent manager, all of whom can also re-approve the detention every seven days.   

CPB said that agents will destroy any information they recover unless they discover any materials that indicate an “imminent threat” to homeland security. However, the agency will also keep a copy for “purposes of complying with a litigation hold or other requirements.” 

The American Civil Liberties Union offered limited praise to the policy changes, but said the government should never be able to search a device without a warrant. 

“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 statement. “However, this policy still falls far short of what the Constitution requires — a search warrant based on probable cause.”

According to CBP data, agents performed electronic searches on 30,200 travelers arriving in the US in the fiscal year 2017. That was an increase of more than 60 percent from the previous year, when agents conducted electronic searches on 19,051 travelers. 

In the month of August, agents searched the electronic devices of 3,133 travelers, according to CBP data. 

CBP is allowed to search any device carried by any traveler as they enter or leave the US. About 80 percent of searches are conducted on non-US citizens, according to ABC News. 

The agency said agents have discovered evidence relating to “terrorism and other national security measures, human and bulk cash smuggling, contraband, and child pornography,” due to the searches.

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