New York Times: Digital Privacy at the Border

This story is far from new, but the warning it contains bears repeating: think carefully about the contents of your electronic devices before you travel outside the United States with them, because you never know what might get searched at the border when you return. A recent New York Times article notes that of the 293 million people who entered the United States in the last fiscal year, 6.1 million were pulled out of line for secondary inspection when they raised suspicions of potential violations of immigration law, agricultural import rules, counter-terrorism statutes, and the like. (See Can You Frisk a Hard Drive? by David K. Shipler, New York Times, 19.Feb.2011.)

These secondary inspections are worrisome, according to Mr. Shipler, because Customs and Border Protection officers, in some cases, will choose to search electronic devices carried by the traveler:

“And there is where concerns have developed about invasions of privacy, for the most complete records on the travelers may be the ones they are carrying: their laptop computers full of professional and personal e-mail messages, photographs, diaries, legal documents, tax returns, browsing histories and other windows into their lives far beyond anything that could be, or would be, stuffed into a suitcase for a trip abroad. Those revealing digital portraits can be immensely useful to inspectors, who now hunt for criminal activity and security threats by searching and copying people’s hard drives, cellphones and other electronic devices, which are sometimes held for weeks of analysis.”

The Times article points out that, statistically speaking, the risk of any particular traveler having his or her electronic devices searched is quite small, noting that only “6,671 travelers, 2,995 of them American citizens, had electronic gear searched from Oct 1, 2008, through Jun 2, 2010.” Nonetheless, the Times reports that civil liberties advocates are concerned about what they view as narrowing of the Fourth Amendment’s constitutional protections “against unreasonable searches and seizures.” A Customs and Border Patrol spokeswoman acknowledged these concerns, telling the New York Times, “The privacy rights that citizens have really supersede the government’s ability to go into any depth,” noting that “we’re looking for anyone who might be violating a U.S. law and is posing a threat to the country. We’re in the business of risk mitigation.”

Official searches of electronic devices may be an artifact of the digital age, the Times suggests, contrasting the search for physical contraband with the search for “digital information,” in which “some is clearly illegal, some only hints at criminal intent, and under existing law, all is vulnerable to the same inspection as hand-carried material on paper.” As the Times article points out, it can be very difficult to find child pornography or pirated intellectual property without “fishing around in hard drives;” to do their jobs, customs officials have to carefully balance their law enforcement needs against the legitimate civil liberties concerns of the traveling public – certainly no easy task.

What is a traveler to do? Although laptop, cellphone, and camera searches are used rather sparingly at the U.S. border, travelers should take reasonable precautions to safeguard the privacy of their data; although it sometimes is unavoidable, think twice before taking sensitive business data or other private information out of the country, and keep in mind that whatever is on these devices may be subject to search at the border… a word to the wise.

Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.