Your Confidential Data and U.S. Border Crossings

This post is about an issue that wasn’t even on my radar screen until yesterday.  My colleague, Reid F. Trautz, director of the American Immigration Lawyers Association in Washington, D.C., sent a link to an article on Yahoo News entitled “NY Lawsuit Seeks to Halt Suspicionless Searches.”  The article relates that the American Civil Liberties Union, the New York Civil Liberties Union and the National Association of Criminal Defense Lawyers have filed the lawsuit on behalf of the National Press Photographers Association, criminal defense lawyers and a student: Pascal Abidor, a 26-year-old French-American citizen whose laptop computer was confiscated at the Canadian border.

The lawsuit is designed to change policies adopted by U.S. government agencies which permit the search of all electronic devices that “contain information,” including laptops, cameras, mobile phones, `smart’ phones and data storage devices.  It seems that the current policies, as written, do not require any probable cause at all before the data can be seized and searched.  Although the article provides a link which purports to take the reader to the location on the U.S. Department of Homeland Security web site which sets forth the policy, it doesn’t in fact take you anywhere useful.  I spent well over an hour searching and going through menus until I finally came across the actual web page where the relevant Directives on Border Searches of Electronic Media can be found.  They are found in two PDF documents.

The whole point is that lawyers, among others, carry a tremendous amount of confidential information on smartphones, laptops, and other devices.  You may not be aware that this information can be accessed at any U.S. border without reasonable cause, or for no cause at all.  Until the above-referenced lawsuit winds its way through the courts, you may want to rethink what you store on your media if you are crossing a U.S. border.

By the way, as I was wandering around the cyber-halls of the government site, I stumbled across a chilling document entitled “International Terrorism and Transnational Crime: Security Threats, U.S. Policy, and Considerations for Congress” which was published by the Congressional Research Service on March 10, 2010.  If you’re interested in this stuff, or just don’t want to sleep well for a few nights, give it a read.


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