CBP Issues Guidance on Border Searches of Electronic Devices
This article was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Laura Danielson is an active member.
U.S. Customs and Border Protection (CBP) issued a memorandum on January 4, 2018, providing guidance and standard operating procedures for border searches of electronic devices. The guidance applies to "searching, reviewing, retaining and sharing information contained in computers, tablets, removable media, disks, drives, tapes, mobile phones, cameras, music and other media players, and any other communication, electronic or digital devices subject to inbound and outbound border searches" by CBP.
Among other things, the memo states that border searches of electronic devices may include searches of the information stored on a device when it is presented for inspection or during its detention by CBP for an inbound or outbound border inspection. The border search will include "an examination of only the information that is resident upon the device and accessible through the device's operating system or through other software, tools or applications. Officers may not intentionally use the device to access information that is solely stored remotely." The memo includes procedures for handling material identified as protected by attorney-client privilege or attorney work product and other sensitive information such as medical records, journalist work and business or commercial information.
The memo states that if presented with an electronic device containing information that is protected by a passcode or encryption or other security mechanism, a CBP officer may request and retain passcodes or other means of access as needed to facilitate the examination of an electronic device or information contained on an electronic device, including information on the device that is accessible through software applications present on the device that is being inspected or has been detained, seized or retained in accordance with the memo.
Passcodes and other means of access obtained during the course of a border inspection "will only be utilized to facilitate the inspection of devices" and information subject to border search "will be deleted or destroyed when no longer needed to facilitate the search of a given device, and may not be utilized to access information that is only stored remotely," the memo states. If an officer is unable to complete an inspection of an electronic device because it is protected by a passcode or encryption, the officer may "detain the device pending a determination as to its admissibility, exclusion or other disposition," the memo notes.