Spoiler alert everyone – I’m in Europe right now. Special thanks to my awesome business partners, Erin Ogden and Jeff Glazer, for making this trip possible. As all business owners know, finding time to vacation is tough, especially if you don’t have partners to lean on.
As a way of background before we get started – I hate flying. I hate TSA body scanners even more – and with the proliferation of facial recognition technology at ports of entry – crossing the border and “coming home” isn’t as exciting as it used to be. Even before facial recognition, though, crossing the border with your electronics was risky – why? Read on to find out.
Let’s lay some easy groundwork that everyone is probably familiar with – in the United States, we have the right to privacy and have protections against unlawful (i.e. arbitrary) search and seizure. While we’re within the borders of the U.S., citizen or not, the protections apply (Yay Constitution!). At the border, when you’re trying to get back in, however, the same protections don’t apply (citizen or not). Wait…what?! Yeah…it’s called the border search exception.
The border search exception is a legal doctrine that allows searches and seizures at international borders and their functional equivalent without a warrant or probable cause. The doctrine is not an exception to the Fourth Amendment, but rather to its requirement for a warrant or probable cause. Not only is the expectation of privacy less at the border than in the interior, the Fourth Amendment balance between the interests of the government and the privacy right of the individual is also struck much more favorably to the government at the border. This balance at international borders means that routine searches are “reasonable” there, and therefore do not violate the Fourth Amendment’s bar against “unreasonable searches and seizures”.
So, on the one hand, big deal, right? Anyone who has been to O’Hare Terminal 5 has seen Daisy the drug beagle (no petting!) and had her sniff your bag. It makes sense for the government to search people coming into the United States, and it’s probably reasonable to allow some exceptions to the normal protections afforded to those people who are already “on the inside.” So, sure…search my bag, ask me some questions, let Daisy have a sniff.
What about your phone, though? What about your laptop? Is a CBP Agent allowed to force you to let himher look through your pictures and other info on your phone for any reason? (Spoiler: Yes). But…what if the search wasn’t a quick “swipe through your pictures” but a complete forensic search and imaging (i.e. full copy) of the contents of your phone or laptop hard drive? (An “advanced search” in CBP lingo) What if you were forced to specifically decrypt your hard drive to facilitate the search? And, finally, what if the CBP Agent didn’t suspect you did anything illegal – does such an advanced search still fall within the border search exception?
The safe answer is easy: Yes. The border search exception allows for a full forensic download of your hard drive without a warrant and without reasonable suspicion. The realistic answer is also easy: Do you want to be stuck in Terminal 5 forever? Better hand over the laptop, regardless of what you think the law is.
The legal answer, though, is more nuanced. Currently, there is a split between the Federal Circuit Courts of Appeal – with the Fourth and Ninth Circuits stating that forensic searches (“advanced searches”) require individualized suspicion (aka no profiling) of criminal wrongdoing, while the Eleventh Circuit ruled that no reasonable suspicion was required for a forensic search. Additionally, a District Court in Boston (First Circuit) recently ruled that forensic searches were unconstitutional without reasonable suspicion of criminal wrongdoing (no word on the appeal, though). In the Seventh Circuit (where we are) – the issue is unresolved – meaning, warrantless and suspicionless forensic searches of your devices are allowed, and are happening, at O’Hare Terminal 5.
Travel safely out there. If I’m not back in the office on Monday, February 10th, check Terminal 5!