Constitutional Law

The Hard Numbers Behind Laptop Searches at the Border

By Suzanne Ito, ACLU

Back in July 2008, Customs and Border Protection (CBP) issued a new policy (PDF) regarding searches of documents and electronic devices at the border. CBP asserts it has the right to conduct these searches of any traveler — citizens and noncitizen alike "absent individualized suspicion," — meaning no suspicion of wrongdoing is even required to conduct a search. Despite an update to the policy in August 2009 (PDF), everything from the photos of your kids on your camera phone to your company's trade secrets on your laptop, is fair game.

The ACLU feels that this policy violates travelers' First and Fourth Amendment rights. So we filed a Freedom of Information Act request for records concerning the criteria for carrying out the searches, how many travelers had been subjected to the searches, the number of devices retained and the reasons for their retention.

Today we released the first batch of information we got back from the CBP. After reviewing 863 pages of documents, here's what we know:

• In a span of just nine months, CBP officials searched over 1,500 electronic devices belonging to travelers.
• Cell phones were the most commonly searched and seized devices between October 2008 and June 2009.
• Other types of devices that were searched and detained include digital cameras, thumb drives, hard drives, and DVDs.
• Between July 2008 and June 2009, CBP transferred electronic files found on travelers' devices to third-party agencies (often to translate or decrypt what's on the device) almost 300 times. Over half the time, these unknown agencies asserted the right to retain or seize the transferred files. More than 80 percent of the transfers involved the CBP making copies of travelers' files.

If you'd like to totally geek out on the data, check out these spreadsheets!

Again, because no suspicion is required to do a search, it's not clear what CBP is looking for. As my former colleague Noam blogged in 2008:

[I]s the solution to search every laptop and cell phone, hoping to uncover an Outlook calendar entry that says "8 a.m.: Coffee and Bagel; 9 a.m.: Blow up Sears Tower?" An all-invasive approach that treats everyone like a suspect is not a smart trade-off for the miniscule chance that we'll catch a break like that.

For those of you who travel across the border frequently, we have a few suggestions for how to keep those trade secrets (and pictures of your kids) private.

Full post as published by Blog of Rights on January 14, 2010 (boomark / email).