Privacy at the Border

customs and border protection search privacy

Between news stories like one about the NASA engineer whose phone was searched at the airport, and the recent suggestion by Department of Homeland Security Secretary John Kelly that border agents gather social media passwords from travelers from certain countries, the debate about privacy issues and border searches has been reignited.

In response to the recent publicity about the issue, Senator Ron Wyden of Oregon has written an open letter this week to Secretary Kelly. In the letter, he announces his intention to introduce legislation to limit the legal authority of border agents to conduct warrantless searches at the border. While border searches are nothing new (the First Congress of 1789 created the first customs laws), the questions about searching electronic devices at the border have grown, as more and more people carry laptops and smart phones while traveling.

The Fourth Amendment of the Constitution protects against “unreasonable searches and seizures” without a search warrant issued because of probable cause. However, the border search exception allows for searches without a warrant. “Routine” border searches are usually less invasive, while “non-routine” searches can be more invasive, and require “reasonable suspicion”. The ongoing debate about electronic devices at the border typically focuses on the level of invasiveness involved with the search.

But with more and more of the average person’s life being stored in digital form, either on a phone or in the cloud, it’s hard to imagine a non-invasive search of a cell phone. In one recent case, a US citizen was detained while border agents searched his phone, including his photos and Amazon account history.

Just as with the ongoing effort to update a 30-year old law that governs email privacy, the question of border searches will likely remain ambiguous, as technology innovation outpaces the laws protecting the privacy rights of citizens. With cloud technologies effectively erasing digital boundaries, courts and legislatures will need to reevaluate what it means to have a border search exception for electronic devices.