Most of us have a bad story about being harassed by customs agents at the border. Interestingly enough, as a Canadian citizen, I’ve never been harassed by US border guards – it’s the Canadian border guards that give me trouble.
But whether you’re crossing from Canada to America or flying back to America after a vacation away, customs agents sometimes want to search your electronic devices. When this happens, it’s natural to feel that your privacy is being severely compromised.
So are customs agents legally allowed to search your laptop when you’re passing through a border crossing?
Yes. They’ve always been allowed to do so, and that law was recently upheld – so don’t expect it to go away any time in the near future. They can also search your phone, tablet, or any other electronic device you bring through the border
Doesn’t the Fourth Amendment protect citizens against unreasonable searches and seizures? Well, it does. And isn’t the Constitution supposed to be a guarantee for all US citizens? Well, yes it is.
But despite Constitutional law, the Department of Homeland Security does not expect to change its electronic device search policies any time soon. Here’s how they defend their search policies:
“…we have been presented with some noteworthy [Customs and Border Protection (CBP)] and [Immigration and Customs Enforcement (ICE)] success stories based on hard-to-articulate intuitions or hunches based on officer experience and judgment.
Under a reasonable suspicion requirement, officers might hesitate to search an individual’s device without the presence of articulable factors capable of being formally defended, despite having an intuition or hunch based on experience that justified a search.”
So basically, as long as the Customs agent has a ‘hunch’ that your laptop has suspicious material, then they’re allowed to search it – even if they can’t put that hunch into words.
As expected, the American Civil Liberties Union (ACLU) is strictly against this policy. Sophos’ Naked Security blog did an excellent write-up of the battle between the ACLU and Department of Homeland Security here.
A password won’t stop them
If you’ve listened to “99 Problems” by Jay-Z, then you know that police officers can’t search locked compartments without a warrant. Or something like that.
But that’s not true for electronics. Customs and Border Protection officials can and will demand passwords for your electronics, including cellphones and laptops. And I don’t think they like to play guessing games, so you should probably just give it to them if they ask.
ACLU wants to return to 1986 rules
In 1986, laptops were a pipedream. Computers were found in only the wealthiest of households, and people thought flying cars were only a decade or two away. I actually don’t know what 1986 was like because I wasn’t even alive, but I’m assuming that’s somewhat close to reality.
But in 1986, the Department of Homeland Security didn’t exist, and Customs and Border Protection (CBP) used a policy that allowed agents to “briefly peruse” a traveler’s possessions.
The ACLU wants to return to that law, which would mostly forbid in-depth laptop searches. However, “briefly peruse” is basically meaningless in a world where we can fit an entire encyclopedia into a handheld device.
As a result, civil liberties advocates have started to refer to border crossings as “Constitution-free zones.” Seriously.
Have you had your electronics searched at the border before? Have CBP officials harassed you and tried to search your electronics? What happened? I had a Canadian border guard threaten to search my phone for illegal pornography once, but he never actually touched my phone. Aside from that, I haven’t had problems.