Customs and Border Protection has rolled out revised regulations covering electronic inspections at ports of entry, shedding light on powers that remain sweeping and contentious. Released today, the new directive expands upon border search protocols that hadn't received a formal overhaul since 2009.
Agents retain the authority to demand that travelers unlock their devices for examination upon entering the country and to browse through any applications or files contained on them. However, aligning with remarks made by then-acting commissioner Kevin McAleenan last summer, the rules explicitly prohibit accessing cloud-based content — defined under the guidelines as any information unreachable when the device's wireless connection is turned off.
The framework also differentiates between "basic" and "advanced" levels of inspection. An advanced search occurs when agents link to the phone via cable or wireless means and extract or scrutinize its contents using external equipment. Such searches require reasonable suspicion tied to criminal wrongdoing or national security risks, with supervisory approval necessary beforehand. The guidelines note that reasonable suspicion can stem from a range of considerations, including placement on a terrorist watchlist or various "other articulable factors."
The American Civil Liberties Union offered a measured response to the changes. "It is positive that CBP's policy would at least require officers to have some level of suspicion before copying and using electronic methods to search a traveler's electronic device," legislative counsel Neema Singh Guliani stated in a press release. Yet the organization maintained that the policy "falls far short" of requiring a full search warrant. "The policy would still enable officers at the border to manually sift through a traveler's photos, emails, documents, and other information stored on a device without individualized suspicion of any kind," the group argued. The ACLU called on Congress to push for tighter constraints on CPB's authority.
CPB maintains that electronic devices fall within its jurisdiction to inspect cargo, comparable to luggage or suitcases. Yet smartphones and laptops contain vastly more sensitive personal data than typical physical items, and the Trump administration has notably intensified inspection activity at the border. According to a press release from the agency, device searches rose sharply between fiscal years 2016 and 2017. Specifically, searches affected 0.007 percent of arriving international travelers in 2017, compared to 0.005 percent in 2016. In total, the agency conducted 30,200 device examinations in 2017, a dramatic rise from the 19,051 carried out the year before.
