WE USED to leave our lives at home when we traveled, but in the digital age, we have begun to take them with us. That is convenient for jet-setters, and even a little too convenient for authorities at the border, whose wide-ranging authority to search Americans’ belongings extends to electronic devices.
The American Civil Liberties Union released alarming documents this week in an existing case whose details were troubling to start with. We knew before that customs officials were accessing troves of sensitive information without meeting any standard of suspicion, and at ever-escalating rates. But the ACLU’s recent discovery is even more concerning: Border agents conduct these searches not only to execute immigration and customs laws but also for general enforcement purposes, and they also share that information with other authorities. Agents even search devices when the traveler is not the subject of interest.
Customs and Border Protection and Immigrations and Customs Enforcement are allowed to inspect Americans’ bags freely for a reason: It’s their job to keep contraband out of the country. Digital forms of contraband, such as child pornography, certainly exist, but these agencies have not bothered to collect data on whether device searches reliably uncover it — which makes it difficult to justify the almost limitless access to Americans’ private lives that officials can gain from even a cursory probe of an individual’s devices.
That may be because these customs officials often are not after digital contraband at all. Instead, the government appears to have set up an end run around the privacy protections that exist outside airports and away from ports of entry. Federal or local enforcement that wants to look through someone’s tablet, but cannot make the case in court for a warrant, can ask border authorities to conduct a search and skip the pesky question of probable cause altogether. While CBP and ICE require at least reasonable suspicion for what they called “advanced” or “forensic” searches — plugging external equipment into a device to review, copy or analyze its contents — the “basic,” or manual, searches that require no individualized suspicion at all are still intensely intrusive.
The question of electronic searches at the border puts two parts of the country’s privacy regime in tension — the looser strictures around when officials may search a traveler’s belongings on the one hand, and the heightened requirements law enforcement elsewhere must meet for electronic snooping on the other. There’s a balance to strike between the two that would let customs agents do their job while protecting Americans from suspicionless intrusion into their most intimate lives, but authorities evidently have little interest in finding it on their own. Now it will be up to the courts, or Congress, to do some searching.