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Immigration Search Authority

If you don't want border agents to see the pictures on your phone, keep them on the cloud

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Americans traveling across the border can keep the information on their phone away from the eyes of Homeland Security by keeping it on the cloud.

Customs and Border Patrol (CBP) announced a new policy on January 5 that prevents border agents from accessing data stored beyond a traveler’s electronic device, but agents are still able to search through data stored on the device.

CBP Directive 3340 049A Border Search of Electronic Media Compliant

The policy is an upgrade to guidelines set by the agency in 2009, but Aaron Mackey, staff attorney for the Electronic Frontier Foundation, said it is still unconstitutional.

“These searches of people's digital devices invade our privacy and reveal to federal agents some of the most personal details of our lives,” said Mackey.

Border patrol will now ask travelers to take their device offline or disable cellular activity when handing them over to ensure the agents will not have access to that information, but there are exceptions to the rules if agents have "reasonable suspicion" the data on the device is of national security concern.

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“We're worried that that exception to the reasonable suspicion requirement will often probably swallow the rule, rendering any privacy protections that they claim illusory," Mackey said.

Mackey said the policy violates the Fourth Amendment, and that if CBP wants to search through a traveler’s devices they should have to get a warrant.

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CBP said in a statement that searching electronic devices is essential in enforcing the border and keeping Americans safe, and the searches have been helpful in the past in combating things like terrorist activity and child pornography.

But national security expert and former White House adviser Timothy Edgar disagrees the searches are actually that helpful.

“Anyone can be singled out for a search at the border, and so looking through all of your contacts and where your phone has been, all the digital data that’s on your phone, your photos, intimate correspondence, it’s really intrusive and it goes way beyond the government’s legitimate interest in border security," Edgar, senior fellow at Brown University's Watson Institute, said.

Edgar also agreed with Mackey that CBP should at least have to get a warrant before searching devices.

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CBP searches of electronics have been increasing every year, with the agency searching about 8,500 devices in 2015 and 30,000 in 2017.

“We're talking about three times as many devices were searched than what agents did back in 2015, and roughly six times as many devices were searched by agents in 2012," Mackey said.

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But despite the large increase, the agency said it still represents less than one percent of travelers across the border, and less than 20 percent of the devices searched were Americans, according to the agency and reported by the LA Times.

Mackey's organization, along with American Civil Liberties Union, filed a lawsuit against the agency in 2017 on behalf of travelers who claim their devices were searched by agents unconstitutionally.

“Law enforcement, generally are required to get a warrant before they search digital devices. We think it's past time that we apply that principle at the border," Mackey said.

Immigration Search Authority
In this Feb. 23, 2016, file photo, a man holds up his iPhone during a rally in support of data privacy outside the Apple store in San Francisco. Watchdog groups that keep tabs on digital privacy rights are concerned that U.S. Customs and Border Protection agents are searching the phones and other digital devices of international travelers at border checkpoints in U.S. airports. The American Civil Liberties Union and the Electronic Frontier Foundation say complaints of such searches have spiked recently. (AP Photo/Eric Risberg, File)

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