The U.S. Customs and Border Patrol announced new restrictions on when agents can copy data from digital devices at border crossing points.
Agents now need “reasonable suspicion” in advance of searches of phones, computers, tablets, cameras or any other digital device belonging to people entering or leaving the United States. Border agents will also be restricted from accessing data stored remotely in the cloud.
The new guidance published (PDF) on Friday update existing rules introduced in 2009 regarding “advanced” searches that can be conducted at random and without warrant.
Under the new rules, border agents would still be able to conduct “basic” searches “with or without suspicion,” which entails physical examination of digital devices, such as sorting through photos and examining messages. “Advanced” searches based on “reasonable suspicion” will still be permitted and agents can still review, copy, and analyze a digital device’s contents.
The directive states travelers may be asked to provide passcodes to unlock a device. If the border agent is unable to inspect the device because it is passcode or encryption-protected, the agent may detain the device for up to five days.
“Travelers are obligated to present electronic devices and the information contained therein in a condition that allows inspection of the device and its contents. If presented with an electronic device containing information that is protected by a passcode or encryption or other security mechanisms, an officer may request the individual’s assistance in presenting the electronic device and the information contained therein in a condition that allows inspection of the device and its contents,” according to the new directive.
Critics of the Department of Homeland Security policy say the new directive is a tiny step in the right direction, but doesn’t go far enough. Neema Singh Guliani, legislative counsel at the American Civil Liberties Union (ACLU),