U.S. Alert – CBP Updates Directive on Border Searches of Electronic Devices

On January 4, 2018, U.S. Customs and Border Protection issued an update to the agency’s directive governing border searches of electronic devices. The new directive supersedes the previous directive released in August 2009.

John Wagner, CBP Deputy Executive Assistant Commissioner for Field Operations, noted that the updated directive “includes provisions above and beyond prevailing constitutional and legal requirements. CBP’s authority for the border search of electronic devices is and will continue to be exercised judiciously, responsibly, and consistent with the public trust.”

Among other things, the directive states that “[a]s a constitutional matter, border search authority is premised in part on a reduced expectation of privacy associated with international travel.” The directive states that 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. Officers may not intentionally use the device to access information that is solely stored remotely. An advanced search may be conducted if activity violating laws enforced by CBP, or a national security concern, is suspected. The directive includes information on handling assertions of attorney-client privilege, attorney work product, work-related information carried by journalists, medical records, business confidential information, passwords, or other sensitive material.

CBP explained that in FY 2017, CBP conducted 30,200 border searches, both inbound and outbound, of electronic devices. Approximately 0.007 percent of arriving international travelers processed by CBP officers (more than 397 million) had their electronic devices searched (more than 29,200). In FY 2016, 0.005 percent of arriving international travelers (more than 390 million) had their electronic devices searched (more than 18,400).

CBP said its border searches of electronic devices “have resulted in evidence helpful in combating terrorist activity, child pornography, violations of export controls, intellectual property rights violations, and visa fraud.”

The new directive is at https://www.cbp.gov/sites/default/files/assets/documents/2018-Jan/cbp-directive-3340-049a-border-search-electronic-media.pdf. A related announcement is at https://www.cbp.gov/newsroom/national-media-release/cbp-releases-updated-border-search-electronic-device-directive-and.