Most Customs and Border Protection agents at ports of entry receive training on their legal authority to search border crossers' laptops, but not in how to actually conduct an electronic search, according to an August 20 Homeland Security Department assessment.

DHS has claimed the authority to search electronic devices carried in and out of the country since the Bush administration. In August 2009, DHS issued revised directives on the search power of CBP and Immigration and Customs Enforcement agents. Both CBP and ICE still retain the ability to search electronic devices "with or without individualized suspicion" and to copy the data that resides on them.

A department privacy impact assessment prepared at the time cites the 1977 Supreme Court ruling of U.S. v. Flores-Montano, which holds that "presenting one's self at the U.S. border seeking to enter has been equated with consent to be searched," the impact statement says.

Since the release of new computer-based course in November 2009, approximately 95 percent of CBP field agents have gone through training on border crossing searches of electronic devices, the new assessment states.

However, "the course does not directly address how an electronic device should be searched," it adds.

Rather, CBP officials are told of the legal authorities that support the border searches, the time frames for holding on to an electronic device (five days unless "extenuating circumstances" exist), when CBP can seek assistance from other agencies and also in the handling and review of business confidential information, attorney-client information, medical information, and work-related information (claims of privileged material require CBP to consult with a federal attorney, according to the privacy impact assessment). The training also informs agents of their reporting requirements.

Missing from the course is the "operational step that occurs before information is discovered--the actual search of the device," the assessment adds.

CBP has developed another course on "triage of electronic devices at the border," made mostly available to senior agents, the assessment says. That course does train officials in the "requisite knowledge to adequately search" an electronic device, and the fact of the triage course's limited availability should not necessarily be taken as proof that the CBP is underprepared, according to the assessment.

Nonetheless, the assessment recommends that CBP plan within a year to have an implementation plan for wider distribution of the triage course.

For more:
- download the DHS assessment on CBP training for the search of electronic devices (.pdf)
- see an August 27, 2009 announcement of new directives for CBP and ICE on border searches, or go directly to the current CBP directive (.pdf) or the ICE directive (.pdf)
- download the DHS privacy impact assessment on border searches of electronic devices (.pdf)

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