Border searches of electronic devices

Unfortunately for journalists and other information providers, searches of laptop computers, digital cameras and other newsgathering materials are not uncommon at airports and other border crossings; border agents can even detain the electronic devices. And what's even more unfortunate, little can be done to prevent them.

That’s because various courts have ruled that these devices are like suitcases, and border agents are therefore not required to have a reasonable suspicion, based on a traveler’s demeanor or physical appearance, before searching them. These “routine border searches” have consistently been upheld as constitutional.

Various attempts to curb this practice have been afoot for several years. The National Press Photographers Association, whose members include television and still photographers, editors, students and representatives of the photojournalism industry, filed a federal lawsuit against the Department of Homeland Security challenging border patrol and immigration and custom agents’ authority to search, copy and detain travelers’ electronic devices at the border without reasonable suspicion.

Moreover, several federal legislators introduced a bill in the U.S. House of Representatives that would heighten the suspicion requirement for a search of electronic data storage devices. Although that measure was never approved, a bill that would require privileged information obtained during a laptop border search to be, among other things, “handled consistent with the laws, rules, and regulations governing such information and … not … shared with a Federal, State, local, tribal, or foreign agency unless it is determined that such agency has the mechanisms in place to comply with such laws, rules, and regulations,” is pending before the House.

In the meantime, a relatively recent policy revision provides the most protection for journalists traveling with confidential information. Under this directive, if you are worried that a search of your laptop or other electronic devices will reveal confidential information, here’s what you may do:

• Tell the border agent or customs official you are a journalist carrying confidential information. If you are worried you will not have an opportunity to tell the agent this before he or she begins searching (the agent can begin the search without your consent), you may want to consider affixing to your devices an easily visible note to that effect.

• He or she should call the agency’s lawyer for advice. If not, you can ask him or her to do so according to the appropriate directive:

• For Customs and Border Patrol -- Directive Number 3340-049, section 5.2.2

• For Immigration and Customs Enforcement -- Directive Number 7-6.1, section 8.6, 2(c).