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January 22, 2018

New Border Regulations Limit Exhaustive Searches of Mobile Devices

Nearly everyone possesses a smartphone or tablet. But there is little awareness of the consequences of bringing such devices across the United States border, and the ability of border agents to search devices upon crossing.

On January 4, 2018, U.S. Customs and Border Protection ("CBP") updated regulations governing border searches of smartphones and other electronic devices belonging to individuals entering or exiting the U.S., generating questions regarding privacy, privilege, and protection of business information.

The change in regulations comes on the heels of 2017's 50% increase in border searches of electronic devices as compared to 2016. In 2017, nearly 30,000 device searches occurred for travelers entering the U.S.

The regulations distinguish between an "advanced search" and a "basic search." An "advanced search" of a device occurs when "an Officer connects external equipment . . . to review, copy, and/or analyze its contents." A "basic search" is "any border search of an electronic device that is not an advanced search."

A basic search may be conducted by border agents at any time "with or without suspicion." However, to perform an advanced search, CBP must have "reasonable suspicion of activity in violation of the laws enforced or administered by CBP, or in which there is a national security concern." Neither the basic nor advanced search require CBP to obtain a warrant.

The regulations include provisions for review and handling of privileged or other sensitive materials. "Officers encountering information they identify as, or that is asserted to be, protected by the attorney-client privilege or attorney work product doctrine . . . will contact the CBP Associate/Assistant Chief Counsel Office", which will "ensure the segregation of any privileged material from other information examined during a border search to ensure that any privileged material is handled appropriately while also ensuring that CBP accomplishes its critical border security mission." As for "business or commercial information" found in devices, CBP "shall treat such information as business confidential information and shall protect that information from unauthorized disclosure."

Per the regulations, travelers are "obligated" to provide passcodes or encryption information to facilitate device searches. Searches "should be conducted in the presence of the individual whose information is being examined," but this "does not necessarily mean that the individual shall observe the search itself." CBP may detain a device for up to five (5) days, or longer if approved by management officials.

Travelers entering the U.S. should be cognizant of how these regulations work in the event of a detention. While advanced search regulations have been tightened, basic searches may still be conducted without cause. Critically, in the event of a search, if a traveler's device contains privileged or other sensitive information, this should be asserted to CBP immediately – though this does not necessarily exclude such materials from CBP's examination.

The updated regulations are set to be reviewed by CBP in January 2021.

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