Coming (Back) to America: Does Your Data Cross with You?

• Pages: 2-3
• Date: 01 October 2023
• Author: John M. McNichols,Nicole Fleming
• Subject Matter: Civil Law

Published in Litigation News Volume 49, Number 1, Fall 2023. © 202 3 by the American Bar As sociation. Reprodu ced with permission . All rights reser ved. This information o r any portion ther eof may not be copied o r disseminated in any form

or by any means or stored i n an electronic database o r retrieval syst em without the expr ess written co nsent of the American B ar Association.

By John M. McNichols, L itigation News Associate Ed itor, and Nicole Fleming , Guest Columnist

Coming (Back) to America:

Does Your Data Cross with You?

ning to scrutinize the notion that the information on a laptop

or smartphone is every bit as inspectable as a bottle of liquor

from the duty-free shop.

What Happen s During a Bord er Search?

The historical rule for crossing international boundaries is

that sovereign states have discretion to determine who may

enter their territories and on what terms. Consistent with this,

travelers have long expected plenary searches when entering a

new domain, even in jurisdictions like the United States where

privacy rights have constitutional safeguards. This so-called

“border exception” to the Fourth Amendment has been part

of American jurisprudence since the founding. The question,

then, is whether the digital age changes anything.

Current U.S. policy on international arrivals effectively

treats travelers’ digital information like other forms of physi-

cal property. That is to say, U.S. Customs and Border Patrol

(CBP) and Immigration and Customs Enforcement (ICE) have

largely unbridled discretion to search electronic devices. Under

the agencies’ policies, an agent need not suspect any criminal

activity to open a traveler’s device, ip through accessible les,

and do everything short of a forensic examination. And even a

forensic or “advanced” search—i.e., one that involves connect-

ing external equipment to the device in question—requires only

a reasonable suspicion of criminal activity, not a warrant.

© Getty Image s

Imagine yoursel f coming back to the United States from

an overseas busines s trip. You touch down at Logan

Airport i n Boston, deplane, and lug your suitcase

through the  nal stretch of Terminal E. Only one obs ta-

cle remains bet ween you and a comfortable cab ride

home: U.S. Custom s. Not a problem, right? You have no need

to fear the Midnight Express treatment be cause you have no

contraband. Moreover, you have no papers, just your phone

and work laptop with some digit al les from the client. But

after run ning through the typica l customs questions—“Where

are you coming from? … Pu rpose of trip? … Anything to

declare?”—thi ngs take a strange turn: T he customs ofcer

picks up your laptop, opens it, and pre sses the power button.

“We need to inspect th is,” he declares, ges turing at the login

screen. “Please put i n the password.”

U.S. citizens may be surprised to know that this kind of

search actually happens. Although only a small fraction of

international travelers have their devices searched, the prac-

tice is on the rise. Ordinary constitutional protections against

unreasonable searches and seizures are considerably relaxed

at the border, which means that searching, decrypting, and

even copying your digital data—all without a warrant or even

probable cause—are within legal limits. For lawyers, this can

be particularly alarming, given our professional obligations to

maintain condentiality. But courts and legislators are begin-

FALL 2023 • VOL. 4 9 NO. 1

2 | A BA LITIGATION SECTION

TECHNOLOGY