Boston partner Punam Rogers published an article in the Spring 2020 issue of Today’s General Counsel highlighting the crucial balance between privacy and national security as it relates to electronic device searches at the border when traveling internationally.
On August 23, 2019, a Palestinian student at Harvard University was denied admission into the U.S., had his visa cancelled and was ordered back to Lebanon because of his friend’s social media activity. This event included the extensive search of the student’s phone and laptop. Following Harvard’s intervention, the student was admitted into the U.S. on September 2, 2019, but this search underscores serious concerns about data privacy when traveling – especially for businesses whose data travels with its employees and inside and outside counsel.
Given heightened security measures by U.S. Customs and Border Protection (CBP) and the Executive Order on Enhanced Vetting, CBP electronic device searches significantly rose to 33,295 devices in fiscal year 2018 compared to only 5,085 in fiscal year 2012. In June 2019, the government began collecting social media data of all visa applicants, which will impact an estimated 14 million-plus travelers to the United States each year. “At the intersection of privacy versus national security policy lies this new and emerging question: Should the government have unfettered access to your electronic device or your social media information without a warrant or some level of reasonable suspicion?” Rogers posits, noting the prevalence of data available in electronic devices due to the rising ubiquity of digital fingerprints.
In discussing the jurisprudence around the question, Rogers points to constitutional interpretations in favor of warrantless searches, as well as rulings from two federal courts of appeal that have held that border searches of digital information require individualized suspicion cases. However, another circuit later reverted back to the constitutional argument that the Fourth Amendment’s carveout for a border search exception means suspicion is not required for electronic searches.
While the Supreme Court will likely be the final decider on this issue, perhaps with a current case brought by the ACLU of Massachusetts, travelers can take certain precautions to protect themselves, including:
Minimize the data carried when traveling;
- Communicate with traveling employees about data security and policies and procedures to protect sensitive data;
- Inform officers if the device contains sensitive data, privileged information, confidential trade secrets, etc.;
- Create backups of files and use encryption; and,
- Know it is not legally required to provide CBP with passwords, although this may lead to further questioning and detention.
The full article is available here.