On 4 January 2018, Customs and Border Protection (CBP) published a new directive for searching and seizing electronic devices at the border. This directive, which supersedes a previous directive issued in August 2009, introduces policies and procedures that are intended to increase transparency and accountability for warrantless searches of electronic devices.
Specifically, the 2018 policy distinguishes between two types of searches: (1) “Basic” searches, where CBP conducts a search of an electronic device with or without suspicion and may only examine the device and its contents; or (2) “Advanced” searches, where CBP may connect external equipment to an electronic device and review, remove or analyze its contents based on reasonable suspicion of activity that (a) violates laws that CBP is authorized to enforce or administer, (b) implicates national security concerns, or (c) is authorized by supervisor. In both instances, CBP is only authorized to search information stored on electronic devices and may not review or extract information that is only remotely accessible.
Between fiscal year (FY) 2016 and FY 2017, CBP has reported a 58 percent increase in searches of electronic devices of inbound and outbound international travelers year-on-year. This has led to concerns about policies and procedures that protect the rights of individuals that interact with CBP officials and the handling of privileged and sensitive information, while recognizing the broad authority afforded to CBP in conducting warrantless searches at the border.