Thursday, March 16, 2017

Privacy -- Not so Much at U.S. Ports of Entry

By Michelle Alonzo

As of late, we are reading more and more news reports of Customs and Border Patrol (CBP) officers carrying out searches of smart phones and laptops, demanding logins and passwords of inbound, and even outbound travelers, in order to review social media platforms, contacts, emails and whatever other data that may be on the device.  The fact is that the authority for this practice has been around for years, but only in 2009 did the U.S. Department of Homeland Security publish the Privacy Impact Assessment for Border Searches of Electronic Devices.*1   With the most recent presidential election, this document and DHS’ authority to perform such searches and execute such seizures has come to center stage in more recent weeks with the more widespread reports of CBP officers exercising this authority over U.S. citizens and non-citizens alike.

Again, while the authority for this practice has been on the books for quite some time, it seems that the exercise of such authority over U.S. citizens was limited to only a few, isolated incidents in past years.

What has changed?  Other than reports of an apparent increase in xenophobia from the new administration, the reality is that nothing has changed.  The U.S. Supreme Court has long held that there is a “border exception,” a “balancing of interests,” between the protections afforded under the Fourth Amendment against unreasonable searches and seizures and our government’s interest in securing our borders.  But in February 2017, the reported searches are making headlines and the general public is left wondering how this is genuinely “permissible” under the law.  

In response to these reports, the American Civil Liberties Union and other organizations have vowed to challenge this “balance of interests” anew in federal court.  Senator Ron Wyden of Oregon that has sent a letter *2  to the Department of Homeland Security expressing his dismay at the frequent  reports of U.S. citizens being asked to unlock and hand over their smart phones at U.S. borders.  He also is reportedly introducing a bill that would require a search warrant before CBP could search such a device.  

But in the meantime, for business professionals who may have obligations to protect client information and business deals, this may be a wakeup call.  Arguably, while these protective measures may be necessary in the abstract, practically they carry a whole new meaning when one considers what is at risk if you have to hand over your smart phone or laptop to a federal agent.

For years non-U.S. business travelers to the United States have been advised to use “burn” phones or laptops when crossing into the U.S. if they feared a potential breach of client-sensitive data by U.S. federal agents.  

It now appears that the increased exercise of this prior authority by Homeland Security or CBP may warrant the same advice to U.S. citizens traveling internationally to take the same precautions.

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  1. Click here to read Homeland Security's Privacy Impact Assessment for Border Searches of Electronic Devices
  2. Click here to read Senator Ron Wyden's letter to Homeland Security


 

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