Customs and Border Protection Clarifies What it Can Search
RingPlus News Service Los Angeles July 14th, 2017:
According to a letter released on Wednesday, U.S. Customs and Border Patrol are not allowed to look at any data stored in the “cloud” when they search U.S. traveler’s phones. This includes social media data. The letter also declared that CBP does not have the authority to search data stored in remote cloud services. This letter was released in response to questions directed at Oregon Senator Ron Wyden.
Customs and Border Patrol data shows that the number of travelers who have been asked for their phone has tripled from October 2015 to October 2016 and had a slight rise once again this past March 2017. This data does not include all the searches being conducted by the Department of Homeland Security or Immigration and Customs Enforcement, as well as the searches to travelers departing the U.S. The letter also omits the search of devices at the border from other agencies, such as the FBI and DEA. Once this is taken into consideration one can see why clarification was needed in what Kevin McAleenan, acting commissioner of CBP, calls a “deeply troubling” practice of border agents pressing Americans to provide access to social media websites and passwords. Wyden and Senator Rand Paul have recently introduced legislation making it illegal for border officers to search or seize cellphones without probable cause, this is yet to be put to law.
Although the letter clarifies the legality of searching cloud data and social media sites, it also clarifies just exactly what they can search and seize under U.S. law. McAleenan’s letter points to many laws that allow the search of any traveler’s phone without probable cause once entering the United States. The agency says this is a practice that is to protect against terrorism, child pornography and drug trafficking. The letter also states that officers can search a phone without consent or even a warrant, but only for content that is saved directly to the phone such as texts, call history, messages and contacts.
In April of 2017, the CBP Office of Field Operations issued new guidelines reminding its officers precise aspects of the CBP’s search and seizure policy. These are not available to the public as the agency claims they are “law enforcement sensitive.” As it stands travelers do not have to unlock their phones, or their password when asked. However, the phone could be “detained” if the officer sees fit.