Balancing Interests at the Border: Protecting Our Nation and Our Privacy in Border Searches of Electronic Devices
James, Carolyn, Santa Clara Computer & High Technology Law Journal
The August 2009 Department of Homeland Security (DHS) Directives on border searches of electronic devices and electronic media add additional guidelines to existing DHS policies; (1) however, officials continue to wield vast discretion to search any electronic device at the border. Potential detection of terrorist activity and confiscation of contraband are the goals behind the broad power conferred upon border officials. (2) While these policies are unquestionably important, they are countered by strong privacy interests. Laptops and other electronic media contain an immense amount of information that is highly personal to the device's owner. With the ability to recover even deleted and encrypted files, customs officials have the keys to people's lives at their fingertips when they conduct searches of electronic media. (3)
Analysis of the 2009 DHS Directives, in context with the border search doctrine, reveals the current imbalance between the government's interest in protecting the borders and travelers' privacy interests. What is needed to rebalance these interests is: (1) a requirement that each border official have at least some reasonable suspicion before searching an electronic device at the border; (2) a requirement that the DHS conduct annual studies of their border searches, report the findings to Congress, and annually issue updated and more concrete directives; and (3) efforts to make travelers better aware of border officials' broad authority to search electronic devices.
Electronic information does not need to cross the physical "border" while stored in an electronic device to be transferred across the border. (4) Therefore, the rules regulating border searches of electronic media should require at least some suspicion because searches of electronic media within U.S. borders require a warrant. If at least some suspicion is required, border searches will be more efficient and travelers' privacy interests will be better protected.
Moreover, to reach the delicate balance between homeland security concerns and privacy interests, Congress should pass legislation requiring the DHS to conduct an annual study of their searches and seizures. The report should include the types of searches conducted; the circumstances of the searches; the results of each search; and the race, gender, and national origin of travelers subject to the searches. The findings should be reported to Congress and, based on the study results, the DHS should be required to annually improve and clarify the policies governing border searches of electronic devices. The tailored policies and more frequent oversight would ensure border officials have appropriate discretion to support the Government's interests and would provide more specific regulations to accommodate travelers' privacy interests.
Finally, travelers should be better warned of the DHS's broad authority to conduct searches of electronic devices when making plans to travel internationally. Congress should require airlines to give notice to travelers of the DHS's authority during the ticket purchasing process before the ticket is officially purchased, on the airline website, and on the airline ticket itself. These are practical methods to inform travelers and will allow travelers to take actions to protect their privacy interests at the border.
II. BACKGROUND OF BORDER SEARCHES OF ELECTRONIC DEVICES
Under the Fourth Amendment, (5) searches and seizures conducted by government agents must be reasonable and supported by probable cause. (6) The Supreme Court has interpreted the Fourth Amendment to require a warrant for searches and seizures with some circumstantial exceptions. (7) The Court has explained that law enforcement practices are "judged by 'balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests.'" (8) However, there is a "border search" exception that allows routine searches of persons and their belongings at the U. …