Yes. On January 4, 2018, U.S. Customs and Border Protection (“CBP”) released an updated directive to provide guidance and standard operating procedures for searching electronic and digital devices subject to inbound and outbound border searches by CBP Officers.
The Federal Government’s authority to conduct searches and inspections of persons and property crossing our nation’s borders is well-established and extensive. The Supreme Court has stated that “searches made at the border … are reasonable simply by virtue of the fact that they occur at the border.” United States v. Ramsey, 431 U.S. 606, 616 ( 1977).
“Routine searches of the persons and effects of entrants [into the United States] are not subject to any requirement of reasonable suspicion, probable cause, or warrant.” United States v. Montoya de Hernandez, 473 U.S. 531, 538 (1985).
Border Searches of Electronic Devices
Pursuant to CBP’s January 4 directive, border searches of electronic devices may include:
“… searches of the information stored on the 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. To avoid retrieving or accessing information stored remotely and not otherwise present on the device, Officers will either request that the traveler disable connectivity to any network (e.g., by placing the device in airplane mode), or, where warranted by national security, law enforcement, officer safety, or other operational considerations, Officers will themselves disable network connectivity. Officers should also take care to ensure, throughout the course of a border search, that they do not take actions that would make any changes to the contents of the device.”
Review and Handling of Passcode-Protected or Encrypted Information
If a CBP Officer is unable to complete an inspection of an electronic device because it is protected by a passcode, encryption, or other security mechanism, the Officer may request the necessary assistance to access and search the electronic device and the information stored therein, or may detain the device pending a determination as to its admissibility, exclusion, or other disposition.
For more information on the border search of electronic devices, contact Lally Immigration Services, LLC at (617) 870-1000 or by email to [email protected].
