Whenever you cross the border of the United States, you are subject to a border search. Borders include international airports and seaports, in addition to land crossings with Mexico and Canada.  U.S. Customs has authority to search persons and things that cross the border  – your car, your private yacht, your private jet, your luggage, and yes, even your mobile phone, laptop, and iPod.     In an August 27, 2009 press release, United States Department of Homeland Security (DHS) Secretary Janet Napolitano set forth some guidelines to the U.S. Customs and Border Protection (CBP)and to the U.S. Immigration and Customs Enforcement (ICE) about searching electronic media devices.

The new guidelines are considered vital to DHS’s mission in “detecting information that poses a serious harm to the United States, including terrorist plans… or possession of child pornography and trademark or copyright infringement.”  Interestingly, the press release stated: “Between October 1, 2008 and August 11, 2009, CBP encountered more than 221 million travelers at U.S. ports of entry.  Approximately 1,000 laptop searches were performed in these instances – of those, just 46 were in-depth.”  The DHS website provides examples of when the searches of electronic media devices resulted in arrests of individuals transporting the devices.

Civil libertarians have long been concerned about U.S. Customs’ authority to search electronic media, considering it a possible invasion of privacy.  As one commentor publicly said to Secretary Napolitano “You and your government are paranoid!”  Sen. Feingold (D-WI) stated during 2008 Congressional hearings on this issue: “When the Government looks through the contents of your laptop, is that just like looking through the contents of a suitcase, car trunk, or purse? Or does it raise dignity and privacty interests that are more akin to an invasive search of the person, such that some individualized suspicion should be required before the search is conducted?”

Section 5.1.2 of the U.S. Customs Directive No. 3340-049 issued on August 20, 2009 states “In the course of a border search, with or without individualized suspicion, a Customs officer may examine any electronic device and may review and analyze the information [contained therein].”  And what about if the information is perfectly legal, but confidential, perhaps containing medical information, or sensitive business information.  No worries, says the Directive, it will remain confidential by Customs, and the information will be destroyed within 5 days thereafter.  Customs says it will keep statistics of such searches.

The concept of a border search is that no probable cause, or any cause whatsoever, is needed by the Customs officer to stop and search persons or things at the border.  That has been the law of the land since this country was founded and U.S. Customs was created.  To allay any such concerns, and to educate international travelers, DHS took the unprecedented step of simultaneously issuing a “Privacy Impact Statement”.  This is a remarkable document.  Moreover, the electronic media device search policy will be monitored by DHS’s Office of Privacy which is led by Chief Privacy Officer Mary Ellen Callahan.

I wrote about this issue in the Customs and International Trade Bar Association’s Spring 2008 newsletter.   I was also extensively quoted in the September 2008 PC Today magazine article “entitled “Notebook Search and Seizure: What Can Happen & What You Can Do”.    The concerns I expressed in those articles remain.  I am encouraged by Secretary Napolitano’s and Acting Customs’ Commissioner Jay Ahern’s approaches to this sensitive issue, and hope that the DHS’ Office of Privacy and Inspector General both vigorously scrutinize the actual implementation of this new Directive.

P.S. I still wonder, what happened with the people and laptops for the approximately 1,000 laptop searches that Customs performed this past year, and what does it mean that a laptop is searched “in-depth”?