On 8 December, WilmerHale published an article which opens with examples of recent China Initiative cases that the US DoJ has brought based largely on the evidence discovered during airport border searches. While the number of these cases has been on the rise, US Attorney Andrew Lelling has referred to the cases announced so far as only “the tip of the iceberg”. It seems that border searches, conducted by US Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE), will remain one of the most essential investigative tools. It says that there are countless cases where innocent travellers have been questioned and devices seized and examined without results. Academic researchers and visiting students have described being targeted by CBP agents, aggressively questioned, and having their devices taken from them. Often, these encounters have led to missed flights and months without laptops or cellphones, and the critical information contained on them. The article describes the current state of the law related to border searches, and the law as it pertains to CBP’s and ICE’s authority to seize and examine electronic devices and recent legal challenges to that authority that could ultimately change the landscape for these searches. The article concludes with a discussion of practical advice for educational institutions, companies, and other organisations to help their researchers, students, and employees prepare to travel to and from the US.
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