US Border Patrol Cannot Search Travellers’ Data ‘Solely’ Stored In The Cloud


The US Customs and Border Protection has acknowledged that the US border patrol officers don't have the jurisdiction to go through travellers' data in cloud storage of their smartphones. The authority has made the disclosure in a reply sent to the Senator Ron Wyden (from Oregon) as he questioned the practice of border agents urging Americans to provide passwords and access to their social media handles.

In the letter to Wyden, CBP wrote:

TerraMaster F2-210 NAS Solution: A Compact Design With A Lot of Capabilities

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.

It is the duty of the US border patrol officers to check travellers' entering and exiting the United States, including the data stored on the internal storage of their electronic devices. But, the checking is limited to the data stored in the local storage of the device. However, the data "solely stored" in the cloud comes under the exception. Therefore, if the data coexist on both the local storage and cloud, then it is a fair game for the CBP to go through it.

A report by Engadget states that Homeland Security had earlier acknowledged that it conducted 5,000 searches of travellers’ electronic devices in one month, last year. The number looks massive when you compare it to the same number of searches carried out during the entire year, in 2015. Assuming that the month under consideration was standard, this implies a 12x jump in the number of searches.

CBP's response to Senator Wyden’s questions also confirms that the foreign travellers could be denied entry into the US if they refuse to unlock their devices for examination but the same action does not apply to the US citizens.

Present probable cause before checking or seizing phones

Sen. Wyden and Sen. Rand Paul, a Republican from Kentucky, proposed legislation in April that would require border officers to present probable cause before examining or confiscating cell phones. In a statement given at that time, Wyden said,"Americans' constitutional rights shouldn't disappear at the border. 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."

The letter clarifies that cloud storage is off guards for the CBP officers at the border. However, the CBP's acting commissioner, McAleenan still reserves the right to request passwords to social channels or cloud storage from the travellers, as part of requesting their support in carrying out a search.

You can read the entire letter here.