United States searches of int'l travelers' electronic devices soar in 2017

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The container was then sent to the Centralized Examination Station in Philadelphia for examination. The new directive released Friday will require a heightened level of suspicion for certain searches, but it reasserts CBP's authority to conduct other searches without any level of individualized suspicion whatsoever.

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

The directive also continues a policy that says without that "reasonable suspicion", agents can only conduct a so-called "basic search", which means they can only look at data that's "physically resident on the phone", and not stored on a remote server. An advanced search - sometimes called a forensic search - is any search involving external equipment connected to an electronic device to scan, analyze, or download the data on the device. A basic search is a review of the content on the phone. Rand Paul (R-KY) that would require a warrant for agents to search devices at the border. Officers, however, may only perform an advanced search if there exists reasonable suspicion of unlawful activity or a national security concern arises.

The Supreme Court previously found that a routine search of any persons seeking admission to the USA, and their personal effects, may be performed without reasonable suspicion, probable cause or a warrant.

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.

"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. Be aware, however, that even if you move content from your device to a cloud account, an advanced search of your device could still reveal deleted files and metadata.

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Second, consider your options when deciding whether to provide a password to unlock your device.

The New Directive states that a USCBP officer may request the traveler's assistance in presenting electronic devices, and information contained therein, in a condition that allows inspection of the device and its contents.

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.

For non-citizens, refusal to open a device could lead to denied entry.

Finally, if you are an attorney or carrying information protected by the attorney-client or attorney work product privileges, make sure to let the officer know.

These measures are not constitutionally adequate because they still allow the government to search material without suspicion or a warrant.

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