On January 5, 2018, U.S. Customs and Border Protection (“CBP”) released an update to the agency’s directive governing order searches of electronic devices. According to the update, this new directive, which supersedes the previous directive released in August 2009, “enhances the transparency, accountability and oversight of electronic device border searches performed by CBP.”
As noted by Deputy Executive Assistant Commissioner, Office of Field Operations, John Wagner in the update:
“In this digital age, border searches of electronic devices are essential to enforcing the law at the U.S. border and to protecting the American people. CBP is committed to preserving the civil rights and civil liberties of those we encounter, including the small number of travelers whose devices are searched, which is why 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.”
Noting the evolution of the operating environment since the 2009 directive was issued, advances in technology and continuing developments, along with the requirements of the Trade Facilitation and Trade Enforcement Act of 2015, codified at 6 U.S.C. § 211(k), Acting Commissioner Kevin McAleenan directed the review and update of the directive.
In fiscal year (“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 FY16, 0.005 percent of arriving international travelers (more than 390 million) had their electronic devices searched (more than 18,400).
According to CBP, 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.
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