CBP Seeks to Ease Concerns on Border Searches of Electronic Devices

A senior U.S. Customs and Border Protection official moved this week to ease concerns about CBP's policies concerning searches of laptop computers and other electronic devices at U.S. borders. Deputy Commissioner Jay Ahern defended the policy and said the agency has specific measures in place to protect business and trade information.

In a document
[http://www.strtrade.com/wti/2008/august/08/search_authority.pdf] dated July 16, CBP "sets forth the legal and policy guidelines within which officers may search, review, retain and share certain information possessed by individuals who are encountered by CBP at the border, functional equivalent of the border, or extended border." These guidelines include the following provisions.

* CBP officers may examine documents, books, pamphlets, and other printed material, as well as computers, disks, hard drives, and other electronic or digital storage devices. These examinations are "a crucial tool" for detecting information in violation of copyright and trademark laws as well as evidence of embargo violations or other import or export control laws.

* In the course of a border search, CBP officers can review and analyze the information transported by any individual attempting to enter, re-enter, depart, pass through or reside in the U.S. without "individualized suspicion." They can also detain documents and electronic devices or copies thereof for a reasonable period of time to perform a thorough border search, either on-site or off-site. During this time information may be shared with other federal agencies or entities to assist with translation, decryption or subject matter analysis.

* If CBP officers determine there is probable cause of unlawful activity, based on a review of information in documents or electronic devices encountered at the border or on other facts or circumstances, they may seize and retain the originals and/or copies of relevant documents or devices.

* If CBP does not have probable cause to seize information after reviewing it, any copies must be destroyed. However, there is no limitation on the authority of officers to make written notes or reports or to document impressions relating to a border encounter.

The policy includes specific provisions governing how CBP handles business information and attorney-client privileged material. CBP officers encountering business or commercial information in documents or electronic devices are required to treat it as business confidential information and to take all reasonable measures to protect it from unauthorized disclosure. And although legal materials are not necessarily exempt from border searches, they may be subject to special handling procedures. Specifically, if a CBP officer suspects that the content of correspondence, court documents or other legal documents that may be covered by attorney-client privilege may constitute evidence of a crime or otherwise pertain to a determination within CBP's jurisdiction, the officer must seek advice from the associate or assistant chief counsel or the appropriate U.S. attorney's office before conducting a search of the document.

Although public concern about this policy has only been expressed fairly recently, Ahern noted in an Aug. 5 posting on CBP's Web site that the policy is in fact not new, that CBP has been searching laptops of those who warrant a closer inspection for years, and that the agency's authority to conduct suspicion-less laptop searches at the border has been upheld by U.S. courts. With respect to specific concerns that the policy could put trade information at risk, Ahern pointed to CBP's track record with the "thousands of commercial entry documents, shipping manifests, container content lists, and details pieces of company information" it receives each day as part of its mission to process entries and screen cargo shipments. "This information is closely guarded and governed by strict privacy procedures," he emphasized, and "information from passenger laptops or other electronic devices is treated no differently."

Nevertheless, some lawmakers are moving to put additional limitations on CBP's search authority. Rep. Zoe Lofgren, D-Calif., introduced July 23 legislation (H.R. 6588) that would prohibit searches of the electronic contents of a laptop or similar device based solely on the government's power to "search at borders or upon entry to the territory" of the U.S.

(Source: www.strtrade.com/wti/register.asp; Copyright 2008, Sandler, Travis & Rosenberg, P.A. Originally published in the Friday, August 8, 2008, issue of ST&R's WorldTrade\Interactive. Reprinted by permission.)