US border agents: We won’t search data “located solely on remote servers”

Enlarge / International air travelers are processed by US Customs and Border Protection agents upon arrival to Bradley International Terminal at Los Angeles International Airport (LAX) on December 10, 2009 in Los Angeles, California. (credit: David McNew/Getty Images)

In a new letter, Customs and Border Patrol (CBP) has answered some questions posed months ago by Sen. Ron Wyden (D-Ore.) about the agency's policies when it comes to searches of digital devices at the border. However, that letter appears to have raised even more questions.

As Ars reported previously, there is a very broad exception to the Fourth Amendment at the border that allows officials to conduct warrantless searches. If your device is locked or encrypted and you refuse to assist agents' attempts to open it, the device can be seized.

The recently published letter from CBP reiterated what federal officials have said before: electronic border searches are extremely rare, and the government claims the legal authority to compel assistance to open a device (including forcing someone to hand over their password). But it also distinguishes between data held on the phone and data held in the cloud.

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