U.S.
CUSTOMS
AND
BORDER PROTECTION
CDP
DIRECTIVE NO. 3340-049A
DATE: January 4, 2018
ORIGINATING OFFICE: FO:TO
SUPERSEDES: Directive 3340-049
REVIEW DATE: January 2021
SUBJECT: BORDER SEARCH OF ELECTRONIC DEVICES
1 PURPOSE.
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.
These searches are part
of
CBP's
longstanding practice and are essential to enforcing the law at
the U.S. border and to protecting border security. They help detect evidence relating to terrorism
and other national security matters, human and bulk cash smuggling, contraband, and child
pornography. They can also reveal information about financial and commercial crimes, such as
those relating to copyright, trademark, and export control violations. They can be vital to risk
assessments that otherwise may be predicated on limited or no advance information about a
given traveler or item, and they can enhance critical information sharing with, and feedback
from, elements
of
the federal government responsible for analyzing terrorist threat
information. Finally, searches at the border are often integral to a determination
of
an
individual's intentions upon entry and provide additional information relevant to admissibility
under the immigration laws.
2 POLICY
2.1
CBP will protect the rights
of
individuals against unreasonable search and seizure and
ensure privacy protections while accomplishing its enforcement mission.
2.2 All CBP Officers, Border Patrol Agents, Air and Marine Agents, Office
of
Professional
Responsibility Agents, and other officials authorized by CBP to perform border searches shall
adhere to the policy described in this Directive and any implementing policy memoranda or
musters.
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2.3 This Directive governs border searches
of
electronic devices - including any inbound
or
outbound search pursuant to longstanding border search authority and conducted at the physical
border, the functional equivalent
of
the border, or the extended border, consistent with law and
agency policy. For purposes
of
this Directive, this excludes actions taken to determine
if
a
device functions (e.g., turning a device
on
and off); or actions taken to determine
if
physical
contraband is concealed within the device itself; or the review
of
information voluntarily
provided by an individual in an electronic format (e.g., when an individual shows an e-ticket on
an electronic device to an Officer, or when an alien proffers information to establish
admissibility). This Directive does not limit CBP's authority to conduct other lawful searches
of
electronic devices, such as those performed pursuant to a warrant, consent,
or
abandonment, or in
response to exigent circumstances; it does not limit CBP's ability to record impressions relating
to border encounters; it does not restrict the dissemination
of
information as required
by
applicable statutes and Executive Orders.
2.4 ·This Directive does not govern searches
of
shipments containing commercial quantities
of
electronic devices (e.g., an importation
of
hundreds oflaptop computers transiting from the
factory to the distributor).
2.5 This Directive does not supersede Restrictions on Importation
of
Seditious Matter,
Directive 2210-001
A~
Seditious materials encountered through a border search should continue
to be handled pursuant to Directive 2210-001 A or any successor thereto.
2.6 This Directive does not supersede Processing Foreign Diplomatic
and
Consular
Officials, Directive 3340-032. Diplomatic and consular officials encountered at the border, the
functional equivalent
of
the border (FEB), or extended border should continue to be processed
pursuant to Directive 3340-032 or any successor thereto.
2.
7 This Directive applies to searches performed by or at the request
of
CBP. With respect to
searches performed by U.S. Immigration and Customs Enforcement (ICE), Homeland Security
Investigations (HSI) Special Agents exercise concurrently-held border search authority that is
covered by ICE's own policy and procedures. When CBP detains, seizes,
or
retains electronic
devices, or copies
of
information therefrom, and conveys such to ICE for analysis, investigation,
and disposition (with appropriate documentation), the conveyance to ICE is not limited by the
terms
of
this Directive, and ICE policy will apply upon receipt by ICE.
3 DEFINITIONS
3.1
Officer. A Customs and Border Protection Officer, Border Patrol Agent, Air and Marine
Agent, Office
of
Professional Responsibility Special Agent, or any other official
of
CBP
authorized to conduct border searches.
3.2 Electronic Device. Any device that may contain information in an electronic or digital
form, such as computers, tablets, disks, drives, tapes, mobile phones and other communication
devices, cameras, music and other media players.
4
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3
.3
Destruction. For electronic records, destruction is deleting, overwriting,
or
degaussing in
compliance with CBP Information Systems Security Policies and Procedures Handbook, CIS HB
1400-0SC.
AUTHORITY/REFERENCES. 6 U.S.C.
§§
122, 202, 211; 8 U.S.C.
§§
1225, 1357,
and other pertinent provisions
of
the immigration laws and regulations; 19 U.S.C.
§§
482, 507,
1461, 1496, 1581, 1582, 1589a, 1595a(d), and other pertinent provisions
of
customs laws and
regulations;
31
U.S.C. § 5317 and other pertinent provisions relating to monetary instruments; 22
U.S.C.
§ 401 and other laws relating to exports; Guidelines for Detention and Seizures
of
Pornographic Materials, Directive 4410-001 B; Disclosure
of
Business Confidential Information
to Third Parties, Directive 1450-015; Accountability and Control
of
Custody Receipt for
Detained and Seized Property (CF6051 ), Directive 5240-005.
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."
United States
v.
Flores-Montano, 541 U.S. 149,
153
(2004). "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
of
the sovereign to protect itself by stopping and examining persons and
property crossing into this country, are reasonable simply by virtue
of
the fact that they occur at
the border."'
Id.
at 152-53 (quoting United States
v.
Ramsey, 431 U.S. 606, 616
( 1977) ). "Routine searches
of
the persons and effects
of
entrants [into the United States] are not
subject to any requirement
of
reasonable suspicion, probable cause, or warrant." United States
v.
Montoya de Hernandez, 473 U.S. 531, 538 (1985). 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.
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).
As a constitutional matter, border search authority is premised in part
on
a reduced expectation
of
privacy associated with international travel. 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"). 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. See Boumelhem, 339 F.3d at 423.
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. 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
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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
of
the 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.
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.
5 PROCEDURES
5.1
Border Searches
5.1.1 Border searches may be performed by an Officer
or
other individual authorized to
perform or assist in such searches (e.g., under 19 U.S.C.
§ 507).
5 .1.2 Border searches
of
electronic devices may include searches
of
the information stored on
the device when it is presented for inspection or during its detention by CBP for an inbound
or
outbound border inspection. The border search will include an examination
of
only the
information that is resident upon the device and accessible through the device's operating system
or through other software, tools, or applications. Officers may not intentionally use the device to
access information that is solely stored remotely. To avoid retrieving or accessing information
stored remotely and not otherwise present on the device, Officers will either request that the
traveler disable connectivity to any network (e.g., by placing the device in airplane mode), or,
where warranted by national security, law enforcement, officer safety,
or
other operational
considerations, Officers will themselves disable network connectivity. Officers should also take
care to ensure, throughout the course
of
a border search, that they do not take actions that would
make any changes to the contents
of
the device.
5 .1.3 Basic Search. Any border search
of
an electronic device that is not an advanced search,
as described below, may be referred to as a basic search. In the course
of
a basic search, with
or
without suspicion, an Officer may examine an electronic device and may review and analyze
information encountered at the border, subject to the requirements and limitations provided
herein and applicable law. ·
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5 .1.4 Advanced Search.
An
advanced search is any search
in
which
an
Officer connects
external equipment, through a wired
or
wireless connection,
to
an
electronic device
not
merely to
gain access to the device, but to review, copy, and/or analyze its contents.
In
instances
in
which
there is reasonable suspicion
of
activity in violation
of
the laws enforced
or
administered
by
CBP,
or
in
which there
is
a national security concern, and with supervisory approval
at
the Grade
14 level
or
higher (or a manager with comparable responsibilities),
an
Officer
may
perform
an
advanced search
of
an
electronic device. Many factors
may
create reasonable suspicion
or
constitute a national security concern; examples include the existence
of
a relevant national
security-related lookout
in
combination with other articulable factors
as
appropriate,
or
the
presence
of
an
individual
on
a government-operated and government-vetted terrorist watch list.
5.1.5 Searches
of
electronic devices will be documented in appropriate
CBP
systems, and
advanced searches should
be
conducted in the presence
of
a supervisor. In circumstances where
operational considerations prevent a supervisor from remaining present for the entire advanced
search,
or
where supervisory presence is not practicable, the examining Officer shall,
as
soon as
possible, notify the appropriate supervisor about the search and any results thereof.
5 .1.6 Searches
of
electronic devices should be conducted
in
the presence
of
the individual
whose information is being examined unless there are national security,
law
enforcement, officer
safety,
or
other operational considerations that make
it
inappropriate
to
permit
the
individual to
remain present. Permitting
an
individual to remain present during a search does not necessarily
mean that the individual shall observe the search itself.
If
permitting
an
individual to observe the
search could reveal
law
enforcement techniques
or
potentially compromise other operational
considerations, the individual will not be permitted to observe the search itself.
5.2 Review
and
Handling
of
Privileged
or
Other
Sensitive Material
5 .2.1 Officers encountering information they identify as,
or
that is asserted
to
be, protected
by
the attorney-client privilege
or
attorney work product doctrine shall adhere
to
the
following
procedures.
5.2.1.1 The Officer shall seek clarification,
if
practicable in writing, from the individual
asserting this privilege as to specific files, file types, folders, categories
of
files, attorney
or
client
names, email addresses, phone numbers,
or
other particulars that
may
assist
CBP
in
identifying
privileged information.
5 .2.1.2 Prior to any border search
of
files or other materials over
which
a privilege has
been
asserted,
the
Officer will contact the CBP Associate/ Assistant
Chief
Counsel office. In
coordination with the
CBP
Associate/ Assistant
Chief
Counsel office, which will coordinate with
the U.S. Attorney's Office as needed, Officers will ensure the segregation
of
any privileged
material from other information examined during a border search
to
ensure that any privileged
material is handled appropriately while also ensuring that
CBP
accomplishes its critical border
security mission. This segregation process will occur through the establishment and employment
of
a Filter
Team
composed
of
legal and operational representatives,
or
through another
appropriate measure
with
written concurrence
of
the CBP Associate/ Assistant
Chief
Counsel
office.
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5.2.1.3 At the completion
of
the CBP review, unless any materials are identified that indicate an
imminent threat to homeland security, copies
of
materials maintained by CBP and determined to
be privileged will be destroyed, except for any copy maintained in coordination with the CBP
Associate/ Assistant
Chief
Counsel office solely for purposes
of
complying with a litigation hold
or other requirement
of
law.
5.2.2 Other possibly sensitive information, such as medical records and work-related
information carried by journalists, shall be handled in accordance with any applicable federal law
and CBP policy. Questions regarding the review
of
these materials shall be directed to the CBP
Associate/Assistant
Chief
Counsel office, and this consultation shall be noted in appropriate CBP
systems.
5 .2.3 Officers encountering business or commercial information in electronic devices shall treat
such information as business confidential information and shall protect that information from
unauthorized disclosure. Depending on the nature
of
the information presented, the Trade
Secrets Act, the Privacy Act, and other laws, as well as CBP policies, may govern
or
restrict the
handling
of
the information. Any questions regarding the handling
of
business
or
commercial
information may be directed to the CBP Associate/ Assistant
Chief
Counsel office
or
the CBP
Privacy Officer, as appropriate.
5 .2.4 Information that is determined to be protected by law as privileged or sensitive will only
be shared with agencies or entities that have mechanisms in place to protect appropriately such
information, and such information will only be shared in accordance with this Directive.
5.3 Review
and
Handling of Passcode-Protected
or
Encrypted Information
5.3.1 Travelers are obligated to present electronic devices and the information contained
therein in a condition that allows inspection
of
the device and its contents.
If
presented with an
electronic device containing information that is protected by a passcode
or
encryption
or
other
security mechanism, an Officer may request the individual's assistance in presenting the
electronic device and the information contained therein in a condition that allows inspection
of
the device and its contents. Passcodes or other means
of
access may be requested and retained as
needed to facilitate the examination
of
an electronic device
or
information contained
on
an
electronic device, including information
on
the device that is accessible through software
applications present
on
the device that is being inspected or has been detained, seized, or retained
in accordance with this Directive.
5.3.2 Passcodes and other means
of
access obtained during the course
of
a border inspection
will only be utilized to facilitate the inspection
of
devices and information subject to border
search, will be deleted
or
destroyed when no longer needed to facilitate the search
of
a given
device, and may not be utilized to access information that is only stored remotely.
5.3.3
If
an Officer is unable to complete an inspection
of
an electronic device because it is
protected by a passcode
or
encryption, the Officer may, in accordance with section 5.4 below,
detain the device pending a determination as to its admissibility, exclusion,
or
other disposition.
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5.3.4 Nothing
in
this Directive limits
CBP's
ability, with respect to any device
pre~ented
in
a
manner that is
not
readily accessible for inspection, to seek technical assistance,
or
to use
external equipment
or
take other reasonable measures,
or
in
consultation
with
the
CBP
Associate/ Assistant
Chief
Counsel office to pursue available legal remedies, to render a device
in
a condition that allows for inspection
of
the device and its contents.
5.4 Detention and Review
in
Continuation
of
Border Search
of
Information
5.4.l Detention and Review by CBP
An
Officer
may
detain electronic devices,
or
copies
of
information contained therein, for a brief,
reasonable period
of
time to perform a thorough border search.
The
search
may
take place on-
site
or
at
an
off-site location, and is to be completed as expeditiously as possible. Unless
extenuating circumstances exist, the detention
of
devices ordinarily should
not
exceed five (5)
days. Devices must
be
presented in a manner that allows
CBP
to inspect their contents.
Any
device
not
presented
in
such a manner may be subject to exclusion, detention, seizure,
or
other
appropriate action
or
disposition.
5.4.1.1 Approval
of
and Time Frames for Detention. Supervisory approval is required for
detaining electronic devices,
or
copies
of
information contained therein, for continuation
of
a
border search after
an
individual's departure from the port
or
other location
of
detention. Port
Director; Patrol Agent
in
Charge; Director, Air Operations; Director, Marine Operations; Special
Agent
in
Charge;
or
other equivalent level manager approval is required
to
extend any such
detention beyond five (5) days. Extensions
of
detentions exceeding fifteen (15) days must
be
approved
by
the Director, Field Operations;
Chief
Patrol Agent; Director,
Air
Operations;
Director, Marine Operations; Special Agent in Charge;
or
other equivalent manager, and
may
be
approved and re-approved
in
increments
of
no more than seven (7) days. Approvals for
detention and any extension thereof shall be noted in appropriate
CBP
systems.
5.4.1.2 Destruction. Except as noted in section 5.5
or
elsewhere
in
this Directive,
if
after
reviewing the information pursuant to the time frames discussed
in
section 5.4, there
is
no
probable cause to seize the device
or
the information contained therein, any copies
of
the
information held
by
CBP
must be destroyed, and any electronic device
must
be
returned. Upon
this determination, the copy
of
the information will be destroyed as expeditiously
as
possible, but
no later than seven (7) days after such determination unless circumstances require additional
time, which must
be
approved by a supervisor and documented in
an
appropriate
CBP
system
and which must
be
no
later than twenty-one (21) days after such determination.
The
destruction
shall
be
noted
in
appropriate CBP systems.
5.4.1.3 Notification
of
Border Search. When a border search
of
information is conducted
on
an
electronic device, the individual subject to search will be notified
of
the purpose and authority
for such search,
how
the individual may obtain more information
on
reporting concerns about
their search, and
how
the individual may seek redress from the agency
if
he
or
she feels
aggrieved
by
a search.
If
the Officer
or
other appropriate CBP official determines that
the
fact
of
conducting this search cannot be disclosed to the individual transporting
the
device without
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impairing national security, law enforcement, officer safety, or other operational interests,
notification may be withheld.
5.4.1.4 Custody Receipt.
If
CBP determines it is necessary to detain temporarily an electronic
device to continue the search, the Officer detaining the device shall issue a completed Form
6051 D to the individual prior to the individual's departure.
5.4.2 Assistance
Officers may request assistance that may be needed to access and search an electronic device and
the information stored therein. Except with respect to assistance sought within CBP
or
from
ICE, the following subsections
of
5.4.2 govern requests for assistance.
5.4.2.1 Technical Assistance. Officers may sometimes need technical assistance to render a
device and its contents in a condition that allows for inspection. For example, Officers may
encounter a device
or
information that is not readily accessible for inspection due to encryption
or password protection. Officers may also require translation assistance to inspect information
that is in a foreign language. In such situations, Officers may convey electronic devices
or
copies
of
information contained therein to seek technical assistance.
5.4.2.2 Subject Matter
Assistance-
With Reasonable Suspicion
or
National Security Concern.
Officers may encounter information that requires referral to subject matter experts to determine
the meaning, context,
or
value
of
information contained therein as it relates to the laws enforced
or administered by CBP. Therefore, Officers may convey electronic devices or copies
of
information contained therein for the purpose
of
obtaining subject matter assistance when there
is a national security concern
or
they have reasonable suspicion
of
activities in violation
of
the
laws enforced
or
administered by CBP.
5.4.2.3 Approvals for Seeking Assistance. Requests for assistance require supervisory approval
and shall be properly documented and recorded in CBP systems.
If
an electronic device is to be
detained after the individual's departure, the Officer detaining the device shall execute a Form
6051D and provide a copy to the individual prior to the individual's departure. All transfers
of
the custody
of
the electronic device will be recorded on the Form 6051D.
5.4.2.4 Electronic devices should be transferred only when necessary to render the requested
assistance. Otherwise, a copy
of
data from the device should be conveyed in lieu
of
the device
in
accordance with this Directive. ·
5.4.2.5 When an electronic device
or
information contained therein is conveyed for assistance,
the individual subject to search will be notified
of
the conveyance unless the Officer
or
other
appropriate CBP official determines, in consultation with the receiving agency
or
other entity as
appropriate, that notification would impair national security, law enforcement, officer safety, or
other operational interests.
If
CBP seeks assistance for counterterrorism purposes,
if
a relevant
national security-related lookout applies, or
if
the individual is
on
a government-operated and
government-vetted terrorist watch list, the individual will not be notified
of
the conveyance, the
existence
of
a relevant national security-related lookout, or his
or
her presence
on
a watch list.
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When notification is made to the individual, the Officer will annotate the notification in CBP
systems and
on
the Form 6051D.
5.4.3 Responses and Time for Assistance
5.4.3.1 Responses Required. Agencies
or
entities receiving a request for assistance in
conducting a border search are expected to provide such assistance as expeditiously as possible.
Where subject matter assistance is requested, responses should include all appropriate findings,
observations, and conclusions relating to the laws enforced
or
administered by CBP.
5.4.3.2 Time for Assistance. Responses from assisting agencies
or
entities are expected in an
expeditious manner so that CBP may complete the border search in a reasonable period
of
time.
Unless otherwise approved by the Director Field Operations;
Chief
Patrol Agent; Director, Air
Operations; Director, Marine Operations; Special Agent in Charge;
or
equivalent level manager,
responses should be received within fifteen (15) days.
If
the assisting agency
or
entity is unable
to respond in that period
of
time, the Director Field Operations;
Chief
Patrol Agent; Director, Air
Operations; Director, Marine Operations; Special Agent in Charge;
or
equivalent level manager
may permit extensions in increments
of
seven (7) days.
5.4.3.3 Revocation
of
a Request for Assistance.
If
at any time a CBP supervisor involved in a
request for assistance is not satisfied with the assistance provided, the timeliness
of
assistance,
or
any other articulable reason, the request for assistance may be revoked, and the CBP supervisor
may require the
as~isting
agency
or
entity to return to CBP all electronic devices provided, and
any copies thereof, as expeditiously as possible, except as noted in 5
.5
.2.3. Any such revocation
shall be documented in appropriate CBP systems. When CBP has revoked a request for
assistance because
of
the lack
of
a timely response, CBP may initiate the request with another
agency
or
entity pursuant to the procedures outlined in this Directive.
5.4.3.4 Destruction. Except as noted in section 5.5.1 below
or
elsewhere in this Directive,
if
after reviewing information, probable cause to seize the device
or
the information from the
device does not exist, CBP will retain no copies
of
the information.
5.5 Retention
and
Sharing
of
Information Found in
Border
Searches
5.5.1 Retention and Sharing
of
Information Found in Border Searches
5.5.1.1 Retention with Probable Cause. Officers may seize and retain an electronic device,
or
copies
of
information from the 4evice, when, based on a review
of
the electronic device
encountered
or
on other facts and circumstances, they determine there is probable cause to
believe that the device,
or
copy
of
the contents from the device, contains evidence
of
a violation
of
law that CBP is authorized to enforce or administer.
5.5.1.2 Retention
of
Information in CBP Privacy Act-Compliant Systems. Without probable
cause to seize an electronic device
or
a copy
of
information contained therein, CBP may retain
only information relating to immigration, customs, and other enforcement matters
if
such
retention is consistent with the applicable system
of
records notice. For example, information
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collected in the course
of
immigration processing for the purposes
of
present and future
admissibility
of
an alien may
be
retained in the A-file, Central Index System, TECS, and/or E3
or
other systems as
may
be appropriate and consistent with the policies governing such systems.
5.5.1.3 Sharing Generally. Nothing in this Directive limits the authority
of
CBP
to share copies
of
information ·contained in electronic devices (or portions thereof), which are retained in
accordance with this Directive, with federal, state, local, and foreign
law
enforcement agencies
to the extent consistent with applicable law and policy.
5.5.1.4 Sharing
of
Terrorism Information. Nothing in this Directive is intended to limit the
sharing
of
terrorism-related information to the extent the sharing
of
such information is
authorized
by
statute, Presidential Directive,
or
DHS policy. Consistent with 6 U.S.C. §
122(d)(2) and other applicable law and policy, CBP, as a component
ofDHS,
will promptly
share any terrorism information encountered in the course
of
a border search with entities
of
the
federal government responsible for analyzing terrorist threat information. In the case
of
such
terrorism information sharing, the entity receiving the information will be responsible for
providing CBP with all appropriate findings, observations, and conclusions relating to the laws
enforced
by
CBP. The receiving entity will be responsible for managing retention and
disposition
of
information it receives in accordance with its
own
legal authorities and
responsibilities.
5
.5
.1.5 Safeguarding
Data
During Storage and Conveyance.
CBP
will appropriately safeguard
information retained, copied,
or
seized under this Directive and during conveyance. Appropriate
safeguards include keeping materials in locked cabinets
or
rooms, documenting and tracking
copies to ensure appropriate disposition, and other safeguards during conveyance such as
password protection
or
physical protections. Any suspected loss
or
compromise
of
information
that contains personal data retained, copied,
or
seized under this Directive must be immediately
reported to the CBP Office
of
Professional Responsibility and to the Port Director; Patrol Agent
in Charge; Director, Air Operations; Director, Marine Operations; Special Agent
in
Charge;
or
equivalent level manager.
5.5.1.6 Destruction. Except as noted in this section
or
elsewhere in this Directive,
if
after
reviewing information, there exists no probable cause to seize the information, CBP will retain
no copies
of
the information.
5.5.2 Retention by Agencies
or
Entities Providing Technical
or
Subject Matter Assistance
5.5.2.1 During Assistance. All electronic devices,
or
copies
of
information contained therein,
provided to an assisting agency
or
entity may be retained for the period
of
time needed to
provide the requested assistance to CBP
or
in accordance with section 5.5.2.3 below.
5.5.2.2 Return
or
Destruction. CBP will request that at the conclusion
of
the requested
assistance, all information be returned to CBP as expeditiously as possible, and that the assisting
agency
or
entity advise CBP in accordance with section 5.4.3 above. In addition, the assisting
agency
or
entity should destroy all copies
of
the information conveyed unless section 5.5.2.3
below applies.
In
the event that any
el~ctronic
devices are conveyed, they must not
be
destroyed;
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11
-
they are to be returned to CBP unless
seizec;l
by an assisting agency based
on
probable cause or
retained per 5.5.2.3.
5.5.2.3 Retention with Independent Authority.
If
an assisting federal agency elects to continue
to retain or seize an electronic device
or
information contained therein, that agency assumes
responsibility for processing the retention or seizure. Copies may
be
retained by an assisting
federal agency only
if
and to the extent that it has the independent legal authority to do so - for
example, when the
inform~tion
relates to terrorism or national security and the assisting agency
is authorized by law to receive and analyze such information. In such cases, the retaining agency
should advise CBP
of
its decision to retain information under its own authority.
5.6 Reporting Requirements
5.6.1 The Officer performing the border search
of
information shall be responsible for
completing all after-action reporting requirements. This responsibility includes ensuring the
completion
of
all applicable documentation such as the Form 6051D when appropriate, and
creation and/or updating records in CBP systems. Reports are to be created and updated in an
accurate, thorough, and timely manner. Reports must include all information related to the
search through the final disposition including supervisory approvals and extensions when
appropriate.
5.6.2 In instances where an electronic device or copy
of
information contained therein is
forwarded within CBP as noted in section 5.4.1, the receiving Officer is responsible for
recording all information related to the search from the point
of
receipt forward through the final
disposition.
5.6.3 Reporting requirements for this Directive are in addition to, and do not replace, any other
applicable reporting requirements.
5.
7 Management Requirements
5.
7
.1
The duty supervisor shall ensure that the Officer completes a thorough inspection and
that all notification, documentation, and reporting requirements are accomplished.
5.7.2 The appropriate CBP second-line supervisor shall approve and monitor the status
of
the
detention
of
all electronic devices or copies
of
information contained therein.
5.7.3 The appropriate CBP second-line supervisor shall approve and monitor the status
of
the
transfer
of
any electronic device or copies
of
information contained therein for translation,
decryption, or subject matter assistance from another agency or entity.
5.7.4 The Director, Field Operations; Chief Patrol Agent; Director, Air Operations; Director,
Marine Operations; Special Agent in Charge; or equivalent level manager shall establish
protocols to monitor the proper documentation and recording
of
searches conducted pursuant to
this Directive and the detention, transfer, and final disposition
of
electronic devices
or
copies
of
-
12
-
information contained therein in order
to
ensure compliance with the procedures outlined in this
Directive.
5.7.5 Officers will ensure, in coordination with field management as appropriate, that upon
receipt
of
any subpoena or other request for testimony or information regarding the border search
of
an electronic device in any litigation or proceeding, notification is made to the appropriate
CBP
Associate/ Assistant Chief Counsel office.
6
MEASUREMENT. CBP Headquarters will continue to develop and maintain
appropriate mechanisms to ensure that statistics regarding border searches
of
electronic devices,
and
the results thereof, can
be
generated
from
CBP
systems using data elements entered by
Officers pursuant to this Directive.
7
AUDIT. CBP Management Inspection will develop and periodically administer an
auditing mechanism to review whether border searches
of
electronic devices are being conducted
in
conformity with this Directive.
8 NO PRIVATE RIGHT CREATED. This Directive
is
an internal policy statement
of
U.S.
Customs and Border Protection and does not create or confer any rights, privileges, or
benefits on any person or party.
9
REVIEW. This Directive shall
be
reviewed and updated, as necessary, at least every
three years.
10
DISCLOSURE. This Directive
may
be
shared with the public.
11
SUPERSEDES. Procedures for Border Search/Examination
of
Documents, Paper, and
Electronic Information (July 5, 2007) and Policy Regarding Border Search
of
Information (July
16,
2008), to the extent they pertain to electronic devices; CBP Directive No. 3340-049, Border
Searches
of
Electronic Devices Containing Information (August 20, 2009).
Acting Commissioner
