We wanted to highlight for you an interesting development regarding searches and seizures of personal electronic devices by U.S. Customs and Border Protection (CBP) at the border.
CBP recently announced that, in fiscal year 2017 (which ended September 30, 2017), it searched the personal electronic devices of 30,200 travelers (inbound and outbound), which is up over 60% from the prior year. Devices include any communication, electronic, and digital devices, including computers, tablets, removable media, disks, drives, tapes, mobile phones, cameras, music and other media players. These searches and seizures are stated to be conducted to identify and respond to terrorism threats, smuggling attempts, illegal immigration, etc. and have been the subject of multiple lawsuits. CBP also updated its directive “Border Search of Electronic Devices” (CBP Directive No. 3340-049A).
What You Should Know
CBP has broad authority to search individuals, and their belongings, entering or exiting the country. There is no reasonable suspicion, probable cause, or warrant requirement. Encrypted and passcode protected content may also be searched. Travelers that refuse to assist CBP in accessing protected content may have their devices detained.
In addition to reviewing content stored on the device (a ‘basic search’), CBP may also conduct an ‘advanced search’ if there is reasonable suspicion of activity in violation of laws enforced or administered by CBP (e.g., customs, export control, immigration laws, etc.). An advanced search is any search in which an Officer connects external equipment, through a wired or wireless connection, to an electronic device not merely to gain access to the device, but to review, copy, and/or analyze its contents.
Not all device content is treated equally. For example, CBP treats content stored on the device differently than content stored remotely (CBP may only access content stored on the device). In addition, CBP must initiate specific procedures when a traveler contends that certain content is privileged or sensitive.
Considering the prominent role of electronic devices in today’s society, CBP’s updated Directive, and the Trump Administration’s focus on border security, device searches at the border will likely continue to increase.
Recommendations
If your company has executives or employees who travel frequently, we recommend preparing those individuals to respond appropriately if/when CBP Officers ask to search their devices (e.g., do employees have to provide their passcodes, if requested by CBP?). For example, updating your company’s travel policies to address this issue and then publishing the updates internally could be a good start to preparing employees for this eventuality. In addition, we recommend that all companies review their company’s data storage policies to ensure the company’s most sensitive data is stored remotely, rather than locally on devices (or that employees have only limited amounts of sensitive data stored locally). While these are not traditional “customs compliance issues,” they are nevertheless important issues the in-house trade compliance team should be raising internally.
We are working with clients on these issues and would be happy to discuss how best to implement the recommendations discussed above with you further. If you would like to do so, please let us know.
We hope this is helpful. For additional information, please contact the authors, Ted Murphy or Aaron Applebaum.
