You’re on your way back from a week’s vacation abroad, and get flagged in customs for your luggage to be searched. You have your digital camera, laptop, and smart phone with you. On your devices are your vacation photos, personal videos, your financial documents, and a draft of your novel. As the customs officials start going through your suitcase and open up your laptop, you may be wondering what right they have to rifle through your stuff without suspecting you of committing any crime.
The Fourth Amendment: Suspended at the Border
In general, Fourth Amendment protections from warrantless searches don’t apply at the border. In the name of security, the U.S. Supreme Court has ruled that border officials may conduct routine searches of people and their belongings without a warrant or any suspicion of wrongdoing. That means that your luggage and even your body can be searched for no other reason than you entering the country. This principle applies to your electronic devices as well, allowing officials to open and peruse your files, photos, videos, and any other easily accessible information on your laptop or phone.
(For information on border searches involving cars and related issues, see When can officials stop, question, and search travelers at the U.S. border?)
Limitations on Border Searches
Although suspicionless border searches are allowed, there are limits to their scope and extent. A federal court of appeals drew these limits in a case involving a search at the U.S.-Mexico border. (The decision doesn't apply to the nation at large—see "circuit court.") (United States v. Cotterman, 709 F.3d 952 (9th Cir. 2013).) When the defendant was crossing the border, officials received an alert that he had been convicted of child molestation 15 years earlier. The officials searched his laptop, but didn’t find anything. So they shipped it 170 miles to undergo a comprehensive examination that revealed images of child pornography.
The court of appeals held that a search like this exceeded the scope of a routine border search and required some basis for suspicion of criminal activity. Most of the existing law on border searches dealt with the search of a person, suitcase, or car—not potentially all of an individual’s important documents as accessed through a laptop computer. With the advancements of technology, people routinely travel—or just walk the streets—with sensitive, personal information stored on their phones and computers. Should law enforcement officials be able to peruse all of our sensitive information just because we happen to be travelling? The court of appeals said no. Rather, border officials can search electronic devices in only a routine and cursory manner. They can quickly go through files, but they can’t conduct the kind of detailed search described above without some reasonable suspicion that they are likely to find evidence of crime.
Consequences for Everyday Travelers
What does all this mean for a traveler who’s just landed and is being searched by a customs agent? How deep into a person’s digital life can they go? Indications are than an officer can probably browse through your photos and documents—that’s the stuff of routine border searches. But they seemingly can’t, for example, use software to analyze your entire hard drive and search deleted files, web browsing history, and password protected files without a bit more. For that kind of exhaustive search, it appears, law enforcement will have to have to reasonably suspect that you’ve been involved in criminal activity. This requirement gives travelers some privacy protection, but not much.