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Laptop border searches, are something that should you travel across the border you’ll likely encounter. Recently a federal appeals court has ruled that U.S. Customs Border personnel must have a reasonable justification prior to seizing your laptop or other mobile device and searching it.
Until now the Obama administration claimed that any American crossing the border was subject to a forensics examination of any of their mobile devices. The judges ruled that a standard request to turn the device on and to see that it is functioning are well within the U.S. Customs Border personnel’s requests of those crossing the border.
Back in 2010 the EFF had offered some guidelines to keeping your data safe and secure while crossing the border. Those guidelines included:
Carry as little data as possible over the border.
Keep a backup of your data elsewhere.
Encrypt the data on your device.
Store the information you need somewhere else, then download it when you reach your destination.
Protect the data on your devices with passwords.
The United States Constitution and the Fourth Amendment prohibits unreasonable government searches and seizures. This means that the government has to get a warrant to search any location or item of yours where you have a reasonable expectation of privacy.
The court in its ruling stated in part:
The amount of private information carried by international travelers was traditionally circumscribed by the size of the traveler’s luggage or automobile. That is no longer the case. Electronic devices are capable of storing warehouses full of information. The average 400-gigabyte
laptop hard drive can store over 200 million pages,equivalent of five floors of a typical academic library. See Orin S. Kerr, Searches and Seizures in a Digital World, 119 Harv. L. Rev. 531, 542 (2005) (explaining that an 80 GB hard drive is equivalent to 40 million pages or one floor of an
academic library); see also LexisNexis, How Many Pages in a Gigabyte?,. Even a car full of packed suitcases with sensitive documents cannot hold a candle to the sheer, and ever-increasing, capacity of digital storage.
The nature of the contents of electronic devices differs
from that of luggage as well. Laptop computers, iPads and
the like are simultaneouslyoffices and personal diaries. They
contain the most intimate details of our lives: financial
records, confidential business documents, medical records
and private emails. This type of material implicates the
Fourth Amendment’s specific guarantee of the people’s right
to be secure in their “papers.” U.S. Const. amend. IV. The
express listingof papers “reflects the Founders’ deep concern
with safeguarding the privacy of thoughts and ideas—what
we might call freedom of conscience—from invasion by the
government.” Seljan, 547 F.3d at 1014 (Kozinski, C.J.,
dissenting); see also New York v. P.J. Video, Inc., 475 U.S.
868, 873 (1986). These records are expected to be kept22 UNITED STATES V. COTTERMAN
The dissent’s discussion about Facebook and other platforms where 11
the user voluntarily transmits personal data over the Internet, often
oblivious to privacy issues, Dissent at 65–66, is a red herring. Of course,
willful disclosure of electronic data, like disclosure of other material,
undercuts an individual’s expectation of privacy. But there was no such
disclosure here. Nor does the border search implicate such an affirmative
disclosure. private and this expectation is “one that society is prepared to
recognize as ‘reasonable.’” Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring).
Electronic devices often retain sensitive and confidential
information far beyond the perceived point of erasure,
notably in the form of browsing histories and records of
deleted files. This quality makes it impractical, if not
impossible, for individuals to make meaningful decisions
regarding what digital content to expose to the scrutiny that
accompanies international travel. A person’s digital life
ought not be hijacked simply by crossing a border. When
packing traditional luggage, one is accustomed to deciding
what papers to take and what to leave behind. When carrying
a laptop, tablet or other device, however, removing files
unnecessary to an impending trip is an impractical solution
given the volume and often intermingled nature of the files.
It is also a time-consuming task that may not even effectively
erase the files.
So for the meantime, those of you crossing the border can thank the Ninth Circuit Court for making your border crossing just a bit easier.