A lawsuit filed last week over warrantless searches of laptops and other electronic devices at U.S. borders highlights an issue that all travelers, U.S. citizens and others, need to be aware of when entering the country, according to the executive director of the Association of Corporate Travel Executives (ACTE).
The suit was filed by the Electronic Frontier Foundation (EFF) and the Asian Law Caucus, two California-based civil rights groups. It asks the U.S. Department of Homeland Security (DHS) to disclose information on its policies for inspecting the contents of laptops and other electronic devices at the country's ports of entry.
The lawsuit was prompted by what the two groups contended were the growing number of reports they were receiving from travelers who claimed to have been subjected to such searches. In most instances, the searches were conducted without apparent reason and with no details offered on what information might have been viewed or downloaded by customs officials, the suit alleged.
Susan Gurley, executive director of the Alexandria, Va.-based ACTE, said that international travelers need to be aware of and prepared for such border searches, even though they are relatively rare. This is especially true because so far little is known about the DHS's policies relating to the practice and what it does with the information collected during searches of electronic devices, she said.
"This is by far not an epidemic of any sort," Gurley said. "But we think people should know that they basically are leaving their right to privacy at the door when they cross the U.S. border. There is no assumption of privacy," at a port of entry, she said. Here are five factors Gurley says travelers should know about:
1. No evidence needed to take your laptop
Border agents do not need any evidence or suspicion of illegal activity to examine a laptop or other electronic device.
Every time you cross the border, customs officials have the right to look at anything in your possession, including the content on your laptop, handheld device, cell phone, USB memory stick and digital cameras, Gurley said. They have the right to both view that information and to download or mirror it if they think it's necessary, she said.
2. Anything can be searched
Everything on an electronic device is open to search. This includes personal photographs, personal banking, any business documents and stored or unopened e-mail, Gurley said.
3. Your PC might not be returned right away
Seized devices may be kept for an indefinite period of time. Carry only a laptop or electronic device you can afford to lose or hand over for an unspecified period of time.
Sensitive data should be sent by e-mail before crossing the border in case the data becomes unavailable if the device is seized, she said.
4. Don't take anything you don't want to share
Don't carry anything on these devices that could potentially embarrass you or that you don't want others to see, Gurley said.
If it's information you don't want to share, don't carry it. That includes data such as personal banking information, photos, correspondence, health and password information. If the device is a company-owned computer, don't carry proprietary business information or personnel records on it, the ACTE advised.
5. Be cooperative
Cooperate with customs officials. Ask for a receipt and a badge number if your computer is seized. Try and get whatever information you can on the reason why it was seized.
The goal is not to hide data from border officials or the U.S government, Gurley said. Rather, it is about being aware that your laptop and other electronic devices in your possession could be searched and to prepare for that eventuality, Gurley said. ACTE's surveys in the past have shown that very few travelers are aware of the potential for such searches. "Our primary concern is to alert travelers that their laptops and other electronic devices can be seized at a border without explanation, provocation or even likely cause," she said.
The lawsuit and the advice come at a time when U.S courts have sent mixed messages on the constitutionality of such searches. In one case, the Appeals Court for the Ninth Circuit ruled that at a minimum, customs officials needed to have reasonable cause for conducting such searches. In another case, an appeals court ruled that such searches can be conducted without a warrant or reasonable cause. Both cases involved child pornography.