US Customs Agents Now Need ‘Reasonable Suspicion’ To Copy Data

The US Customs and Border Patrol (CBP) has placed new restrictions on when its agents are permitted to copy data from devices such as mobile phones and laptops at border crossing points such as airports, amidst a surge in such “advanced” searches.

Agents will now need to have “reasonable suspicion” to conduct advanced searches, which may include copying data from the devices of people entering or leaving the country, the patrol said in new guidance published on Friday.

The new rules, an update to guidance put into place in 2009, continue to permit agents to inspect information stored on a device at random. But they can’t copy the data or connect an external device to analyse the contents unless they have grounds to suspect an individual is breaking US law or that there is a “national security concern”.

“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,” said John Wagner, deputy executive assistant commissioner, office of field operations, in a statement.

Rise in searches

CBP agents inspected 30,200 phones and other devices during 2017, up 63 percent from 19,051 in 2016.

The vast majority of inspections affected individuals arriving from abroad, which last year accounted for more than 29,200 of the searches. But the CBP said the figure was only about 0.007 percent of all arriving travellers processed by the department, which totalled more than 397 million.

Border authorities in the US have considerably broader powers than those operating inside the country, and civil liberties advocates argue their powers should be reined in.

The ACLU said the CBP’s policy change was “positive”, but called for border checks to be brought into line with national laws.

“This policy still falls far short of what the constitution requires — a search warrant based on probable cause,” stated ACLU legislative counsel Neema Singh Guliani. “Additionally, it fails to make clear that travelers should not be under any obligation to provide passcodes or other assistance to officers seeking to access their private information.”

Privacy advocate Ron Wyden, a US senator, said “far too many” searches were being carried out by the CBP, and argued constitutional rights should not disappear at the border.

“It is my view that Americans will be safer when time and resources are spent on searching people with an actual cause,” he stated.

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