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Let’s Talk Border Privacy

This Thursday, October 17th from noon to 1 p.m., Let’s Talk, KWMR’s listener call-in program, would like to hear your thoughts about Border Privacy. The Fourth Amendment to the U.S. Constitution protects individuals from unreasonable searches and seizures of property by the government. It requires a warrant issued by a judge on grounds of probable cause that the property to be searched contains evidence of illegal activity. That legal safeguard does not apply to routine searches at U.S. ports of entry. Courts have recognized that the government’s need for security at the border may outweigh an individual’s right to privacy, and government agents may conduct searches without warrants or even suspicion of wrongdoing. The “border exception” does not apply to “non-routine” searches, including body cavity searches and destruction of property, highly intrusive searches that affect the dignity and privacy of travelers. Such searches and seizures still require suspicion of illegal activity and court-issued warrants. But courts are still trying to decide whether or not the border exception applies to private digital data on travelers’ electronic devices. In 2018, Customs and Border Protection (CBP) agents conducted over 33,000 warrantless searches of data on electronic devices. Such searches include simply clicking on icons and using search functions, but have also used external software to search and make copies of a device’s contents, including deleted data. It is CBP policy to only access data on the device itself, without accessing content in the cloud or live social media feeds. The U.S. Immigration and Customs Enforcement (ICE) agency has no such limitation. While we have become accustomed to our personal details being shared online, with our own complicity, are there limits we expect to be enforced when it comes to government searches? For travelers such as doctors, having a laptop computer searched at the border when it may contain patients’ medical data would be a violation of patient privacy. There have been several legal challenges to the border exception since data searches were intensified during the Obama administration. As the laws governing such searches develops, what can we do to protect our private data? If a device is locked, and a border agent asks us to unlock it for a search, we can refuse, but citizens may have their device confiscated and permanent residents may have their green card status questioned. How much intrusion into our privacy are we willing to accept if such intrusions might protect us from terrorism, or might catch, for example, sexual predators or drug lords or undocumented relatives? Please listen and call 415-663-8492 or 8317 during the show to join the discussion with your own thoughts, views, opinions and experiences.