US Customs says border agents can't search cloud data from travelers' phones

Responding to inquiries from a senator, the agency states it can't search remotely-stored data, but it maintains it can search locally-stored data on devices without consent.
Written by Stephanie Condon, Senior Writer

US Customs and Border Protection has clarified to the US Senate that, even though it can search electronic devices at the border without consent and in most cases without a warrant, it does not have the authority to go through data stored in the cloud.

"CBP's authority to conduct border searchers extends to all merchandise entering or departing the United States, including information that is physically resident on an electronic device transported by an international traveler," the agency said in a memo, as NBC News reports. "Therefore, border searches conducted by CBP do not extend to information that is located solely on remote servers."

The memo was issued by Kevin McAleenan, the CBP's acting commissioner, in response to questions from Sen. Ron Wyden (D-Oregon).

See a key section of the memo here and the full memo below.

"With my concurrence, CBP's Office of Field Operations issued [guidelines] in April 2017 reminding its officers of this precise aspect of CBP's border search policy," McAleenan wrote.

As NBC notes, travelers don't necessarily have to unlock their devices or give CBP authorities their password. However, Customs agents can "detain" the phone, McAleenan said.

"In this digital age," McAleenan wrote, "CPB must... conduct limited and targeted inspections of electronic devices to determine whether they contain contraband (such as child pornography), information indicating inadmissibility, or information that could present a threat to national security."

McAleenan did not clarify exactly how many devices are searched at the border. The American Civil Liberties Union obtained statistics suggesting that only a fraction of travelers are subjected to a device search. However, new figures show that the number of border searches has exploded year over year to 2016 by over five-fold.

Wyden and other US lawmakers -- from both parties -- have expressed their concern over CBP searches of electronic devices. In April, Wyden and Republican Sen. Rand Paul of Kentucky, along with House Reps. Jared Polis (D-Colorado) and Blake Farenthold (R-Texas), introduced a bill that would make it unlawful for officials to search a phone, laptop, or social media accounts of Americans and lawful permanent residents at the border without a warrant.

"Americans' constitutional rights shouldn't disappear at the border," Wyden said at the time. "By requiring a warrant to search Americans' devices and prohibiting unreasonable delay, this bill makes sure that border agents are focused on criminals and terrorists instead of wasting their time thumbing through innocent Americans' personal photos and other data."

Meanwhile, the Trump administration is demanding more data from foreign travelers requesting visas to enter the US.

According to a cable obtained by Reuters, the US State Department will require all nations to provide extensive data to help it vet visa applicants. It directs governments to hand over

"Countries should make available any other identity information at the request of the U.S. Including, as appropriate, additional biographic and biometric data and relevant immigration Status," the cable says.

Countries that fail to comply with the new rules or begin to do so within 50 days could face travel sanctions, it says.

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