Citation[edit | edit source]
Overview[edit | edit source]
This publication is intended to provide guidance and standard operating procedures for searching, reviewing, retaining, and sharing information contained in computers, tablets, removable media, disks, 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 U.S. Customs and Border Protection (CBP). 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.
Legal basis[edit | edit source]
The plenary authority of the Federal Government to conduct searches and inspections of persons and merchandise crossing our nation's borders is well-established and extensive; control of the border is a fundamental principle of sovereignty. "[T]he United States, as sovereign, has the inherent authority to protect, and a paramount interest in protecting, its territorial integrity." "The Government's interest in preventing the entry of unwanted persons and effects is at its zenith at the international border. Time and again, [the Supreme Court has] stated that 'searches made at the border, pursuant to the longstanding right ofthe sovereign to protect itselfby stopping and examining persons and property crossing into this country, are reasonable simply by virtue ofthe fact that they occur at the border."' "Routine searches of the persons and effects ofentrants [into the United States] are not subject to any requirement of reasonable suspicion, probable cause, or warrant." Additionally, the authority to conduct border searches extends not only to persons and merchandise entering the United States, but applies equally to those departing the country.
As a constitutional matter, border search authority is premised in part on a reduced expectation of privacy associated with international travel. Persons and merchandise encountered by CBP at the international border are not only subject to inspection under U.S. law, they also have been or will be abroad and generally subject to the legal authorities of at least one other sovereign. In addition to longstanding federal court precedent recognizing the constitutional authority of the U.S. government to conduct border searches, numerous federal statutes and regulations also authorize CBP to inspect and examine all individuals and merchandise entering or departing the United States, including all types of personal property, such as electronic devices.
CBP must conduct border searches of electronic devices in accordance with statutory and regulatory authorities and applicable judicial precedent. CBP's broad authority to conduct border searches is well-established, and courts have rejected a categorical exception to the border search doctrine for electronic devices. Nevertheless, as a policy matter, this Directive imposes certain requirements, above and beyond prevailing constitutional and legal requirements, to ensure that the authority for border search of electronic devices is exercised judiciously, responsibly, and consistent with the public trust.
References[edit | edit source]
- United States v. Flores-Montano, 541 U.S. 149, 153 (2004).
- Id. at 152-53 (quoting United States v. Ramsey, 431 U.S. 606, 616 (1977)).
- United States v. Montoya de Hernandez, 473 U.S. 531, 538 (1985).
- See, e.g., United States v. Bourne/hem, 339 F.3d 414, 422-23 (6th Cir. 2003); United States v. Odutayo, 406 F.3d 386, 391-92 (5th Cir. 2005); United States v. Oriakhi, 57 F.3d 1290, 1296-97 (4th Cir. 1995); United States v. Ezeiruaku, 936 F.2d 136, 143 (3d Cir. 1991); United States v. Cardona, 769 F.2d 625, 629 (9th Cir. 1985); United States v. Udofot, 711 F.2d 831, 839-40 (8th Cir. 1983).
- See Flores-Montano, 541 U.S. at 154 (noting that "the [[expectation of privacy] is less at the border than it is in the interior").
- See Boumelhem, 339 F.3d at 423.
- See, e.g., 8 U.S.C. §§ 1225, 1357; 19 U.S.C. §§ 482, 507, 1461, 1496, 1581, 1582, 1589a, 1595a; see also 19 C.F.R. § 162.6 ("All persons, baggage, and merchandise arriving in the Customs territory of the United States from places outside thereof are liable to inspection and search by a Customs officer."). These authorities support CBP's enforcement and administration of federal law at the border and facilitate the inspection of merchandise and people to fulfill the immigration, customs, agriculture, and counterterrorism missions ofthe Department. This includes, among other things, the responsibility to "ensure the interdiction of persons and goods illegally entering or exiting the United States"; "detect, respond to, and interdict terrorists, drug smugglers and traffickers, human smugglers and traffickers, and other persons who may undermine the security of the United States"; "safeguard the borders of the United States to protect against the entry of dangerous goods"; "enforce and administer all immigration laws"; "deter and prevent the illegal entry of terrorists, terrorist weapons, persons, and contraband"; and "conduct inspections at  ports of entry to safeguard the United States from terrorism and illegal entry of persons." 6 U.S.C. § 211.
Source[edit | edit source]
- "Legal basis" section: Border Search of Electronic Devices, at 3-4.