Customs and Border Protection's New Policy for Searching Devices Offers Thin Protection

Philadelphia CBP seized 709 pounds of cocaine concealed in cabinets and furniture shipped from Puerto Rico

Philadelphia CBP seized 709 pounds of cocaine concealed in cabinets and furniture shipped from Puerto Rico

On Sept. 13, 2017, the Electronic Frontier Foundation (EFF) and the American Civil Liberties Union (ACLU) filed a lawsuit against the federal government on behalf of 11 travelers (10 US citizens and one lawful permanent resident) whose smartphones and other electronic devices were searched without a warrant at the United States border. If officers are unable to conduct their search due to a locked device, they are expressly permitted to detain the device (subject to time and supervisory approval limitations) to complete their inspection.

Cope and Mackey also contend there isn't much difference between "basic" and "advanced" searches - that both are highly intrusive. In that decision, the Supreme Court held that, given the significant and unprecedented privacy interests that people have in their digital data, the Police could not conduct warrantless searches of the cell phones of people they arrest. He called it "an improvement", but said in a statement that it still allows, "far too many indiscriminate searches of innocent Americans". Rand Paul (R-KY) that would require a warrant for agents to search devices at the border.

The new directive still requires no suspicion at all when an advanced search implicates a "national security concern" - which is not clearly defined in the policy and is potentially vague enough to cover a wide array of scenarios - or when a search is not considered advanced.

The Supreme Court previously found that a routine search of any persons seeking admission to the US, and their personal effects, may be performed without reasonable suspicion, probable cause or a warrant. But even so-called "basic" searches can be incredibly invasive, exposing the intimate details of a person's life to government agents who never have to make a case for why they need to conduct the search.

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 worldwide airports and other USA borders.

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Last Friday, U.S. Customs and Border Protection (CBP) released a revised directive governing searches of travelers' electronic devices at U.S. borders, along with an updated privacy impact assessment of those searches.

Impact: The new policy does not prevent officers from searching protected information. 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.

The EFF/ACLU lawsuit alleges that border searches of electronic devices violate the First and Fourth Amendments to the U.S. Constitution when conducted without a warrant that is based on probable cause that the device contains data indicating the traveler has broken an immigration or customs law.

Second, consider your options when deciding whether to provide a password to unlock your device. The bottom line is that attorney-client, business and other sensitive information stored in an worldwide traveler's electronic device remains subject to search. Travelers who are not US citizens or lawful permanent residents may risk being denied entry. The CBP directive provides for certain procedures that must be followed before a search of such material can take place.

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Existing Razer Phone users will also benefit from the Netflix and Razer partnership with an over-the-air update later this month. Meanwhile, "all future Razer Phone releases" will come preloaded with the HDR and Dolby Digital Plus 5.1-capable firmware.

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