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“They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety” — Benjamin Franklin

As if the airlines and TSA haven’t made traveling hard enough for the leisure or business traveler it has now become even harder. The Washington Post reported on August 1st in their article, Travelers’ Laptops May Be Detained At Border :

Federal agents may take a traveler’s laptop computer or other electronic device to an off-site location for an unspecified period of time without any suspicion of wrongdoing, as part of border search policies the Department of Homeland Security recently disclosed.

Also, officials may share copies of the laptop’s contents with other agencies and private entities for language translation, data decryption or other reasons, according to the policies, dated July 16 and issued by two DHS agencies, U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement.

(Nakashima, Ellen, Travelers’ Laptops May Be Detained At Border, The Washington Post, August 1, 2008 )

These policies apply to anyone entering the country through any means — not just at airports but at border crossings from Canada, Mexico, or at seaports throughout the United States. The search and seizure can occur without any probably suspicion by the officials and the items taken can be held for an indefinite period of time. Laptops are not the only items that can be taken for examination

international travelers have reported that their laptops, cellphones and other digital devices had been taken — for months, in at least one case — and their contents examined.

The policies state that officers may “detain” laptops “for a reasonable period of time” to “review and analyze information.” This may take place “absent individualized suspicion.”

The policies cover “any device capable of storing information in digital or analog form,” including hard drives, flash drives, cellphones, iPods, pagers, beepers, and video and audio tapes. They also cover “all papers and other written documentation,” including books, pamphlets and “written materials commonly referred to as ‘pocket trash’ or ‘pocket litter.’ ”

(Nakashima, Ellen, Travelers’ Laptops May Be Detained At Border, The Washington Post, August 1, 2008 )

What this means is that even your personal diary can be taken and examined by DHS at their discretion even though you may have no connection to terrorism, narcotics trafficking, child pornography or any other of a multitude of crimes. What would be interesting is if someone writes in a diary that confesses to a lessor crime – say cheating on their federal taxes – and this is discovered during one of these inspections that apparently would be actionable. According to the policies released by DHS on July 16 2008 the

examinations of documents and electronic devices are a crucial tool for detecting information concerning terrorism, narcotics smuggling, and other national security matters; alien admissibility; contraband including child pornography, monetary instruments, and information in violation of copyright or trademark laws; and evidence of embargo violations or other import or export control laws.

(Department of Homeland Security, “Policy Regarding Border Search of Information“, July 16 2008, as found on the Center for Democracy and Technology‘s website)

As can be seen from this excerpt, any infraction found by DHS can be actionable — whether it is something major like information related to terrorism or something minor like a confession in a diary that you feel like you may have cheated on your taxes or ran a red light. This policy appears to be in violation of the 4th amendment of the U.S. Constitution

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized

The U.S. 9th Circuit Court of Appeals ruled in the case of U.S. v. Arnold that searches of laptops at the border without reasonable suspicion does not constitute a violation of the 4th amendment because the laptop is considered a “closed container” and the U.S. courts have long held that “searches of closed containers and their contents can be conducted at the border without particularized suspicion under the Fourth Amendment” (United States v. Arnold, No. 06-50581,(9th Cir April 21, 2008 )). Previous court rulings have allowed for the searches of briefcases and luggage, purses, wallets, pockets, pictures, films and other graphic materials when these items cross the border.

However, while this may not be a violation of a person’s 4th amendment, the fact remains that such unwarranted searches are a violation of their privacy. Officially, the items gathered by the Customs and Border Patrol (CBP) agents during such a search can be held for further inspection for a “reasonable period.” The policies do not specify any specific length of time. The policies do, however, specify that if no reasonable suspicion is found then the information gathered must be destroyed. However, in section B of the policy it states “Nothing in this policy limits the authority of an officer to make written notes or reports or to document impressions relating to a border encounter.”
(Department of Homeland Security, “Policy Regarding Border Search of Information“, July 16 2008, as found on the Center for Democracy and Technology‘s website).

So, if you’re a business person and you are traveling with confidential information, a CBP agent can inspect your documents or your laptop, make notes of what they find, and then return your documents to you. If they make copies of the documents, then, when the search is concluded, those copies must be destroyed but the notes they take do not have to be destroyed. Additionally, CBP can share the information they copy with other agencies and the policy does not require those other agencies to destroy their copies of the information gathered even if CBP determines that there is no probable cause. Now, the information they gather must be handled properly — especially in cases of business confidential information and other similar documents. However, the fact that any border agent can rifle through your personal notes and diary looking for anything leaves the distasteful feeling that the 4th amendment is quickly being chipped away by the government in the name of fighting terrorism. Remember that the next time you travel outside the United States — just leave that manuscript for your novel at home.

Note: See here for how to try and protect your personal information when traveling overseas.

April 2020

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