Yup. If you are entering the country and an immigration or customs officer has a hunch your computer or phone may contain bad stuff, they can take the device and download the information.
The United States Department of Homeland Security has always stated they have the right to inspect stuff you are bringing into the country. But imagine if you were hand-writing a book on paper and DHS not only picked up the papers and flipped through it, but they scanned every page for review later? That’s what Customs & Border Protection (CBP) is doing to a portion of the 2 percent of travelers coming into the country who are directed into secondary inspection. Here is the scanned PDF of the DHS document on the Border Searches of Electronic Devices. (Note that most news stories out there are not linking you to the actual document.) In part, it reads…
CBP and ICE do not target electronic devices alone; such devices are one of many types of items or containers that may be searched, usually during secondary inspection. And an electronic device may be subjected to one or more types of scmtiny. These include:
- A brief physical inspection by an officer, including the traveler opening a case, or perhaps turning a device on in order to demonstrate that the device is what it purports to be and not a container for tangible contraband (e.g., illegal drugs). This type of inspection is not considered to be an electronic device search for the purposes of the border search policy.
- Search of the device’s contents.
- Detention of a device, or of a copy of information contained on the device for the completion of forensic examination. ICE and CBP policies provide guidance on the length of time electronic devices may generally be detained. The guidance is flexible in light of operational requirements, and differs between the two Components based upon their differing missions. Minimizing the length of time a device is detained is a goal of both policies, but encryption, large volumes of documents password protections, and the need for computer forensic assistance may cause detention to last up to several months, and the policies deal with this delay in different ways, discussed immediately below.
- Seizure of a device as evidence of a crime, or for civil forfeiture under applicable law. A seized device is ordinarily retained through trial as evidence, subject to normal evidentiary handling rules. (If a device is subject to forfeiture, appropriate forfeitW’e proceedings are initiated as provided by law. See 19 U.S.C. §§ 1600-1617(2006).)
- Retention of a device, or of a copy of information contained on the device, for evidence of continued or future admissibility.
So that’s what they can do, but what standards are they using to direct those coming into the country – be them citizens, residents or visitors – into secondary inspection and possibly search device contents or copy the information contained on the device? From page 10 of the document linked above, partially which has been redacted, we read in the Legal and Policy Analysis section…
…as a result of our law and policy review, we reach the following conclusions about steps that we believe need not be taken:
- CBP and ICE need not institute a policy requirement of reasonable suspicion as a predicate for electronic device searches.
- CBP and ICE electronic border search policies do not violate travelers’ First Amendment rights as defined by the courts.
Makes you feel all warm and fuzzy huh? Look, I realize very few readers if any will ever run into this situation, but this is all about opening that door a crack and what can happen. If they are allowed to do this in a small scale what stops them on a medium or large scale when they write stuff like this. With my emphasis in bold.
The Department’s activities to enforce the laws and provide security necessarily involve detection and deterrence of crimes facilitated by electronic devices, and therefore require intrusion into aspects of people’s lives that would otherwise remain unscrutinized.
And they claim their policy does not violate the Forth or First Amendment?