We all understand the need for nations to secure their borders from illegal aliens or terrorist infiltrations, or from unwanted or illegal contraband. To this end, the U.S. government has long recognized a doctrine known as "border search exception," which permits federal agents to search travelers and their property at international borders and American ports of entry without probable cause. The U.S. Customs and Border Protection (CBP) is mainly responsible for conducting these types of searches and they permit their agents to randomly search the belongings of any traveler of any nationality entering or exiting the U.S. This practice is distinguishable from conducting searches of a traveler's body, which requires more justification. While this process is somewhat time-consuming, most travelers grudgingly submit to this invasive procedure as a reasonable measure by government to protect its sovereignty. However, recent developments are calling into question the reasonableness of certain U.S. security measures.

In U.S. v. Arnold, the Ninth Circuit Court of Appeals rejected the argument that the search of a traveler's' laptop computer files invaded his personal dignity and privacy interests, and was the equivalent of a body search. Instead, the court ruled that searches of electronic materials are legally equivalent to searches of property. This means that the government can search electronic devices such as digital cameras, laptops mobile devices, iPods, DVDs and other digital information — even vacation photos. The most logical question here is, "What type of limitations are placed on those with the authority to conduct these types of exceptional searches?"

Currently, CBP and Department of Homeland Security officials claim they follow strict guidelines to safeguard confidential and personal information. However well-meaning this belief is, let's examine who has the authority to conduct such searches. The powers of border search exception extend to CBP officers, border patrol agents, air and marine agents, internal affairs officers and any other authorized official. In theory, an Israeli lawyer living and working in Tel Aviv can be retained by a U.S. firm in New York City to provide services. The attorney develops work product, stores it on his laptop's hard drive and schedules a business meeting with a client in New York. On arrival in the U.S., the laptop and digital files can be copied and shared with other authorized officials that CBP designates. For example, if these files are transcribed in Hebrew, more government agents from outside are authorized to translate the files. The translation could invoke the issue of attorney-client privileges, in which case the local U.S. Attorney's Office would make a determination. The only legal limitations to this scenario are to avoid causing exceptional damage to the laptop's hard drive and to conduct the search and investigation in an inoffensive manner. This means that digital information can be downloaded by government agents, never returned or destroyed. In school, kids attempt to excuse their lack of preparation or diligence by telling the teacher that their dog ate their homework, but now the proverbial dog might be the U.S. government and it might no longer be a kid's fairy tale.

Most business travelers have a laptop that contains personal and professional communications, in some cases, corporate secrets, banking information, family photos and confidential business communications — all of which can now be copied over to government computers and used however the government decides. These types of searches give all business and individual travelers' reason to pause about how they travel or transact business. We expect to see more and more business travelers and companies that transact with U.S. firms to encrypt their laptop hard drives and elect to leave the login and passwords with company officials in their host country, to be given once they request them; or to use VPN and the Internet to transfer files.

Submit a Comment | Permalink

Due Process?



Of course, this policy raises legitimate concerns about reasonable search and seizures and privacy protections. But equally important is the question of consistent implementation practices and procedures. Currently, CBP and DHS officials claim they follow strict guidelines to safeguard confidential and personal information. But as Jeff points out, what is disconcerting is that the powers of Border Search Exception extend to CBP Officers, Border Patrol Agents, Air and Marine Agents, Internal Affairs Officers and any other authorized official. So following consistent practices and procedures for the search and, more importantly, the dissemination of any confiscated information (which is protected under privacy and government use laws) is a big issue. Perhaps the encryption technology market will explode with new interest as travelers attempt to foil government intrusion attempts at the border. And, despite the Arnold case ruling in the 9th Circuit Court, I am sure US courts will witness a new influx of cases filed by privacy lawyers. It will be interesting to see of the two U.S. presidential candidates comment or take positions on this practice (without appearing to impinge on national or homeland security concerns).