Border Search Exception.
International travelers, be forewarned: the US federal court decision announced on New Year’s Eve did not seem to attract a lot of attention, but its impact should be of interest to all of you. The court upheld the government’s right, at the borders, to inspect and copy the contents of travelers’ laptops and other electronic devices without the need for reasonable suspicion, even if that means confiscating the devices for the days or weeks necessary to perform such inspections.
Known as the “border search exception”, this tenet of US law allows for “routine” search and seizures at international borders and their equivalents (e.g. airports with international flights) and has been consistently upheld by the US Supreme Court.
What is relatively recent is not only the application of the border search exception law to electronic devices, but the right of the government to confiscate the laptop, cellphone or other electronic device for days or weeks (11 days in the case just decided by the federal court), as well as the government’s right to copy everything it finds on the devices. And US customs agents do not need reasonable suspicion of wrongdoing; no particular justification is needed. All the more reason to treat the border agent with attentive and obedient respect!
At the moment, the fact that these searches are rarely performed is the best protection we all have; if the seizure of travelers’ laptops or cellphones were to become more commonplace, the need for reasonable suspicion would very likely become a legal requirement of the border search exception law.
Under current law, it is assumed that you are aware that you could be searched when crossing international borders (either at the US border or, perhaps with much more certainty, at the foreign entry/exit point). It is further assumed that, armed with this knowledge, you had the option of taking precautions to mitigate the possible eventual search or seizure of your laptop or cellphone.
The obvious conclusion: don’t carry with you on your laptop, cellphone or ipad any data you do not wish to share with anyone else, and be ready to lose the use of those devices for a couple of weeks.
Take this warning as an incentive to finally clean up your laptop or your cellphone of all that useless or perhaps compromising data you’ve been accumulating over the years. Also make sure you have a full backup of all the data you care about, or alternatively, that you are a user of cloud services and have access to all of your data from devices other than the ones you are carrying with you. On the other hand, if you are really paranoid about this, you can simply travel with a laptop free of data and use gotomypc.com or some other remote access software to connect to your computer back at the office or at home during your trip.
Safe travels with your electronic devices!
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