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 smartphone 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.
Fourth Amendment protections regarding warrantless searches aren't nearly as strong 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 (at least to some extent) can be searched for no other reason than you entering the country. (There's case law providing that the government also has expanded search power when it comes to people exiting the country.) This principle applies to your electronic devices as well, but to what extent?
(For information on border searches involving cars and related issues, see When can officials stop, question, and search travelers at the U.S. border? And for information on the potentially complicating factor of state (rather than federal) law, see Does state law factor into border searches?)
Although suspicionless border searches are allowed, there are at least some limits to their scope and extent. A federal court of appeals drew such limits in a case involving a search at the U.S.-Mexico border. (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. (For more on the facts of the case and its outcome, see the opinion.)
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 of criminal activity.
Despite this ruling, though, the law on searches of digital devices at international borders appears murky. Courts seem to differ when it comes to the level of suspicion that government officials need in order to thoroughly search an item like a laptop. (To read about another case involving a laptop at an international border, see Laptop Searches at Airports: Another Court Weighs In.)
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 from at least some courts are that an officer can probably browse through your photos and documents, that being the stuff of routine border searches. According to some courts, officials 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, law enforcement may need to reasonably suspect that you’re involved in criminal activity. This requirement gives travelers some privacy protection, but not much.