No Privacy At the Border: New Law Permits Additional Searches of Laptops and Documents

Next time you travel outside the United States, don't be surprised when U.S. Customs and Border Protection agents give your laptop a closer look than ever before. According to a policy announced on July 16, 2008, Customs agents have authority to conduct searches at the border of information contained in documents and electronic devices such as laptops and flash drives, even without any suspicion of wrongdoing or unlawful activity. There is no distinction between foreigners and Americans. The new policy allows Customs to search, copy, retain, and share information from computers, disks, hard drives, electronic or digital storage devices, as well as documents, books, pamphlets, and other printed materials. Officers may detain documents and electronic devices for as long as they deem necessary and reasonable to perform a thorough search, either on or off site. Customs may share the documents or electronic devices with other federal agencies or entities for translation, decryption, or subject matter assistance, without notice. Customs' new policy is consistent with recent court decisions that already permitted government officers to conduct "routine" searches at the border—searches that do not "seriously" invade an individual's privacy—without a warrant or probable cause. And don't be surprised that "routine" and "seriously" do not mean what you might expect. Courts have considered most any search "routine" simply because it took place at a border, and a thorough examination of all forms of property is not considered an invasion of privacy, which is limited to some forms of bodily examination. The "border," moreover, extends to the "functional equivalent" of the border, such as at the Customs and Immigration entries of a U.S. airport where an international flight lands. In July, the Ninth Circuit rejected a defendant's argument that a laptop was like the "human mind" in its ability to record ideas, e-mail, internet chats, and web-surfing habits and that, consequently, a laptop search constituted an invasion of privacy. To the contrary, the Ninth Circuit treated the laptop as nothing more than another piece of property, a holding consistent with a Fourth Circuit case in which the court rejected the defendant's argument that a laptop search required a higher level of suspicion because it contained expressive material.

Despite these cases and Customs' new policy, there are some limits on the government's broad powers at the border and you should know your rights. Customs may detain documents and/or devices for an unspecified "reasonable" amount of time, but permanent seizure requires probable cause of unlawful activity. When probable cause does not exist, Customs must return originals and destroy any copies made of the information, but the new policy is silent on how long Customs in fact may take before returning anything. According to Customs' policy, all actions surrounding the retention of originals or copies will be documented by officers and certified by a supervisor. Any copies shared with other agencies will either be returned to Customs or the agency must certify to Customs that it has destroyed copies of the information. However, there are few limitations when the documents in question pertain to immigration. Customs may retain the originals or copies of such documents, regardless of warrant or suspicion. Federal agencies assisting Customs may retain copies of immigration or non-immigration information only when the agency has an independent legal right to do so. When you are at the border, you will not know and will not be able to learn whether some other agency, the Internal Revenue Service, for example, has an independent legal right to your information.Courts have held open the possibility that a laptop search may be deemed unreasonable when it is carried out in a particularly offensive manner or results in exceptional damage to the traveler's property. Customs officials also do not have unlimited abilities to search an international traveler's laptop without suspicion of wrongdoing after the traveler already has crossed the border, beyond the first point at which the traveler might have been stopped within the country.

International business travelers should be aware of the possibility that business confidential information and even documents subject to attorney-client privilege could be subject to border searches. Customs' policy requires that officers "take all reasonable measures" to protect business confidential information from unauthorized disclosure, and states that laws such as the Trade Secrets and Privacy Acts may govern or restrict the handling of information. However, the policy does not provide specific guidelines on how officers should treat such information. Attorney-client privileged material also may be searched, but the officer must suspect that the documents' contents contain evidence of a crime and the officer must receive approval to search the privileged information from the Associate/Assistant Chief Counsel or the appropriate U.S. Attorney's office. International business travelers should be prepared for searches and should take necessary precautionary measures. As a practical matter, the risk that Customs agents may conduct an extensive "routine" search of laptops or documents may be very low—there is not enough time to search every traveler, and agents typically are focused on higher-risk security threats. Nevertheless, travelers concerned that business-confidential or privileged information could be examined by border officials may want to take precautionary steps to protect such information, including the following:

• Establish secure, web-based document repositories that you or your business colleagues can use to access documents remotely.
  
• Send electronic copies of documents prior to meetings, rather than carry them across the border in electronic or digital storage devices.
  
• When information must be carried across the border, rather than storing it on the "desktop" of your computer, store it separately in portable storage devices such as memory sticks or flash drives that are labeled, where appropriate, "business confidential" or "attorney-client privileged." Customs is authorized to view these documents, but identifying sensitive information may help to alert border officials to any special handling procedures that might be required, reducing the risk of inadvertent exposure of confidential information. Whereas Customs may "routinely" search business confidential information, the examination of "attorney-client" information requires reasonable suspicion and the advice of an Assistant Chief Counsel, thus giving it an extra layer of protection against arbitrary border inspection.
  
• Consider turning off e-mail caching when traveling to other countries. Some programs such as Microsoft Outlook store or "cache" copies of e-mail messages on the laptop so that the e-mail messages are available for review while not connected to a computer network. Note that with caching turned off, you will not be able to read your e-mail without first connecting to the computer network.
  
• Clear or delete web browser cache and delete "cookies" and passwords that may be stored on your laptop.

Alternatives to carrying information on a laptop are not always a good or sufficient solution to the problems indicated above. Don't assume that sending documents across the border by U.S. mail or private carrier can alleviate confidentiality concerns. Customs officers may not read the contents of sealed letter class mail sent across the border without a warrant, but they are permitted to open it. Customs may both search and read, without a warrant, documents sent abroad through private carriers such as FedEx, UPS, or DHL. Customs officials in other countries may or may not have similar standards for border inspections.

Bon voyage!