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ResourcesVisa & Immigration LawVisa NewsUSCBP Press Release Regarding Border Search of Electronic Devices

USCBP Press Release Regarding Border Search of Electronic Devices

Transcript of the above video:

In this video today as the title suggests, we are going to be talking about USCBP, that's US Customs and Border Protection and the specific press release that came out in the last few weeks where CBP discusses specifically some issues pertaining to border security but of interest, the title of the press release is "border search of electronic devices".

As viewers of this channel and subscribers may recall we did a specific video on USCBP policy with respect to so-called crypto currency and crypto currency wallets and specifically with respect to the fact that they are viewed as sort of an almost "always attached" financial instrument that just exists out in the ether notwithstanding the fact you may not be holding it at the time you move through USCBP. The reason I bring this up is CBP falls into the ambit of sort of US Immigration Law. They are sort of the first "line of defense" if you will, of US Immigration Law and Policy but also there is a lot of legal issues that come up with respect to US Customs and Border Protection and to be clear, they operate not in an unregulated capacity but their mandate puts them in a situation where they kind of operate in a legal, I won't say limbo because it's been clearly defined, but they operate in a legally novel environment as compared to say other law enforcement organizations and why I say this is because over the years, the United States Supreme Court has carved out a number of exemptions for US Customs and Border Protection with respect to things like the Fourth Amendment of the United States Constitution which creates restrictions against government, against unreasonable search and seizures by agents of the government and these exemptions were sort  of carved out from the standpoint that first of all there is this legal notion that until you've been admitted legally into the United States you are not in the United States yet and for that reason USCBP has more latitude with respect to what they can do. I am not going to go any further deeply into the philosophy behind how they are able to do these things, I'm simply bringing the viewers of these videos up to date with respect to some newer policies and how they are going to impact folks who are looking to travel in the United States. So on page 1 of this press release, and I strongly urge those who are interested to check this thing out; it's CBP directive number 3340 – 049A, the Subject Line reads "border search of electronic devices”. “Purpose: To provide guidance and standard operating procedures for searching, reviewing, retaining and sharing information contained in computers, tablets, removable media, discs, drives, tapes, mobile phones, cameras, music and other media players, and any other communication, electronic or digital devices subject to inbound and outbound border searches by US Customs and Border Protection. These searches are conducted in furtherance of CBP's Customs Immigration law enforcement and Homeland Security responsibilities and to ensure compliance with Customs immigration and other laws that CBP is authorized to enforce and administer. These searches are part of CBP's long-standing practice and are essential to enforcing the law at the US border and to protecting border security. They help detect evidence relating to terrorism and other National Security matters, human and bulk cash smuggling, contraband, and child pornography. They can also reveal information about financial and commercial crimes such as those relating to copyright trademark and export control violations. They can be vital to risk assessment that otherwise may be predicated on limited or no advance information about a given traveler or item and they can enhance critical information sharing with, and feedback from, elements of the federal government responsible for analyzing terrorist threat information. Finally searches at the border are often integral to the determination of an individual's intentions upon entry and provide additional information relevant to admissibility under immigration laws.” I would quote one thing further from this but I urge viewers to go read this directive in its entirety. But the thing to take away from this video is, the directive specifically pertains to electronic devices and I think that the preamble pretty well sums it up insofar as CBP is going to be checking electronic devices. They have the authorization and the case law behind them to not only look at people's electronic devices and the information contained thereon, but there's also case law and precedent has been set with respect to confiscating, seizing if you will, laptops, mobile phones, smartphones, anything that can retain data and move it to an entirely different location for further forensic search and study and for this reason the thing to take away from this video is, any kind of electronic device that is moving through USCBP, they're going to search it.  Well I'm not saying they're going to but they have the ability to search it and they have the ability to pretty much find out whatever is on there. There isn't much in the way of legal protection against that. Something else of interest, one specific line which I found interesting.” CBP will protect the rights of individuals against unreasonable search and seizure and ensure privacy protection while accomplishing its enforcement mission”. Let me re-read that. "CBP will protect the rights of individuals against unreasonable search and seizure and ensure privacy protection while accomplishing its enforcement mission".  It’s generally not the enforcement organization who is responsible for trying to ensure or protect shall we say, rights of individuals against unreasonable search and seizures. That tends to be the court. That's their job. to determine whether something is unreasonable. However in the context of US Customs and Border protection, the court has pretty well said look the Fourth Amendment does not apply in the same way, if at all, and for that reason, really the only people to deal with is CBP and CBP alone and they have the final decision for “Better or Worse”, they have the final decision with respect to whether or not to confiscate, and they do return these devices, but confiscate and search devices, search devices generally etc. Let me finish this off by saying I've dealt with USCBP for years traveling in and out of the United States.  I have always found them to be quite professional in conducting their duties but that being said there are statistics out there right now which clearly indicate that more and more mobile devices are being checked and searched. This is CBP's own data that this is coming from. So, the reason that I bring up this video is to just to note to viewers that when traveling through US Customs and Border Protection, there are no particular protections against search and/or seizure of both the electronic devices one may be traveling with, but also the information contained therein.