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Checking Your Privacy at the Border

Catherine Crump,
Staff Attorney,
ACLU Speech, Privacy and Technology Project
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December 16, 2009

(Originally posted on Daily Kos.)

With the holiday season underway, travelers are bracing themselves for the countless hassles that come with modern travel. Most have adapted to waiting on long security lines, taking off their shoes and parting with their bottled water. But international travelers often don’t realize that they might also have to endure border officials viewing their Web histories. And their financial records. And their vacation photos.

That’s because the Obama administration, in an August announcement that attracted little public attention, stated that it would continue President Bush’s policy of searching and copying the information on international travelers’ laptops, cameras and cell phones without any suspicion of wrongdoing. If you want to know how much that matters, just think about the personal information you have on those devices. The administration is expected to issue a civil liberties assessment of the policy any day now, but it’s hard to imagine any justification for groundless searches of Americans’ sensitive personal data.

Originally announced in July 2008, the current policy permits border agents to search electronic devices “absent individualized suspicion.” Agents may hold on to devices “for a reasonable period of time” to “review and analyze information.” In other words, border agents are legally able to take travelers’ information whenever they want at security checkpoints at airports or along the border, and hold on to it for as they long as they want. Agents may also copy information and send it off-site to be analyzed. The policy applies to all electronic devices, including computers, disks, hard drives, cell phones and cameras. Travelers have to be concerned about more than the possibility of security agents rifling through their belongings. Their private data might be compromised, erased, or kept indefinitely, and they don’t know how that data might be used.

Courts have previously protected individual privacy rights by requiring the government to meet a heightened standard before gaining access to library patrons’ reading records, and by mandating that searches of materials protected by the First Amendment be carried out with “scrupulous exactitude.” The same level of protection should be afforded to those traveling through our nation’s airports and across our borders.

It is doubtful that the government’s suspicionless searches make us any safer. If only a tiny percentage of travelers are criminals or terrorists, and an even tinier percentage of these individuals travel through government checkpoints carrying evidence of their own illegal actions, then the odds are vanishingly small that a groundless search will turn up evidence of wrongdoing. Besides, there is already an easy way to move information across borders without risking a search at the border: the Internet.

In justifying its policy, the government has issued platitudes about the importance of suspicionless border searches of information to security. But it has offered no data indicating how often the searches have uncovered unlawful conduct, and no data indicating how many of those cases have led to prosecutions. The civil liberties report expected this month should address the effectiveness of these searches, but it is doubtful that the policy has yielded results that could justify this intrusive practice. What is more likely is that, in the absence of any standards or guidelines to follow when selecting individuals for search, the policy increases the possibility of individuals being selected for scrutiny on the basis of their race or ethnicity rather than any other legitimate criteria. The government’s assessment should provide data on the racial and ethnic breakdown of those subjected to suspicionless searches.

Previous statements by the administration indicate that the forthcoming civil liberties report is also unlikely to adequately acknowledge the magnitude of the valid privacy issues presented to travelers. In a previous report that accompanied its adoption of the Bush policy, the Obama administration dismissed those who questioned its authority by characterizing them as ill-informed — or, in the bureaucratic words of the report, as those who “need additional information regarding the authority to conduct border searches.” Travelers deserve better than to have their concerns brushed aside when their private data can be seized without suspicion. No one should be expected to check their Fourth Amendment rights, along with their baggage, when traveling across our borders.

Take Action: Tell DHS to rein in travel abuses.

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