13 June 2018
The U.S. Customs and Border Protection issued new rules under its directive governing border searches of electronic devices. The new rules require border agents to have “reasonable suspicion” in advance of searches of electronic devices, and restrict border agents from accessing data stored remotely in the cloud. To avoid accessing or retrieving data stored remotely, border agents will need to request that the individual disable connectivity to any network (or if warranted, will themselves disable network connectivity). Border agents may still conduct basic searches with or without suspicion, which entails physical examination of electronic devices as well as searches of the information stored on the devices. In conducting searches, border agents may request individuals to provide means of access if the information is protected by a passcode or encryption, since individuals must present electronic devices and the information stored in such devices in a condition that allows inspection of the devices and their contents. Critics have argued that the new rules fail to meet the Constitutional standard of probable cause for a search warrant, and would continue to enable border agents to bypass device encryption and passwords and to examine an individual's electronic devices without reasonable suspicion. For more information, see https://www.cbp.gov/document/directives/cbp-directive-no-3340-049a-border-search-electronic-devices.