U.S. Customs and Border Protection Updates Directive on Searching Electronic Devices

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January 5, 2018

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The U.S. Customs and Border Protection (“CBP”) released an updated Directive governing border searches of electronic devices. The Directive outlines in detail how the CBP will conduct border searches of electronic devices. Employers with employees who regularly participate in international travel may wish to take note of these changes in the event that an employee’s electronic device(s) contains confidential or sensitive work-related information.

An officer authorized to perform a border search may be permitted to search any information stored on an electronic device when presented or detained for inspection. Officers are not permitted to access information that is not locally stored on the device, and travelers will be asked to disable the device’s network connectivity. If the device contains information protected by attorney-client privilege, CBP officers will follow certain protocols to ascertain which files are privileged, segregate such files from non-privileged material, and complete the border search.

If devices are password-protected or otherwise encrypted, CBP officers may request the traveler’s assistance in entering encryption keys so that the search can be completed.  Although knowledge of any passcodes or other means of access with be deleted after the search is completed, employers may wish to implement security protocols to revise passwords after searches have been completed.

This Directive has been updated in part due to the increasing amounts of electronic devices and information transferred across the border.  Employers with travelling employees should be aware of the CBP’s policies and procedures, and be prepared to comply in the event of an electronic device search.

Action Items

  1. Review the updated Directive here.
  2. Have policies updated to address border searches of company electronic devices or data when traveling internationally.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2018 ManagEase

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