Digital privacy shouldn’t be optional on the US border

While most Americans that reenter the United States after travel abroad expect the government to ask for their passport, few realize that this request may be followed by one for their passwords. Without warrants, probable cause or even any individualized suspicion, Americans of all stripes — from NASA engineers and military veterans to journalists — have been asked to turn over access to their laptops or cellphones.

In the last year alone, the number of these searches has exploded by nearly 60 percent. As our digital lives become increasingly complex and intertwined with our daily existence, it’s imperative that additional safeguards are placed around this trove of data to protect it from such unmerited searches.

The perceived authority to conduct these relatively unrestrained searches derives from the so called “border exception.” This is the recognition by the Supreme Court that the Constitution grants the government wider latitude at the border in order to protect its sovereignty from unwanted contraband and persons. Traditionally, this has meant greater immigration enforcement powers, the use of checkpoints and physical searches close to the border that are not restricted by the Fourth Amendment to the same degree as government actions elsewhere. The Supreme Court has suggested that, at least in part, this is because “the expectation of privacy is less at the border than it is in the interior.”

{mosads}Articulating what we expect our privacy to look like at the border thus becomes critical for courts wrestling with legal challenges to this policy, as well as for lawmakers hoping to constrain it. Fundamentally, this requires answering certain questions. For example: Is the privacy interest in a cell phone any different than in a car trunk? Is a laptop functionally equivalent to a handbag? Questions such as these cause the border exception to stumble, as the nature of digital information emerges as fundamentally different.

The border exception was conceived to detect and defend against relatively limited amounts of physical contraband, not the incredible collection of data present on most personal devices. These devices hold hundreds of gigabytes that reflect our most intimate thoughts and actions, store photos and texts as well as data on everything from our diets to our locations. The revelation of any individual facet of this information could provide a potentially mortifying insight into someone’s private life — in the aggregate, it can essentially reconstruct it in its totality.

As with all policy or law, the border exception’s continuing legitimacy is based on a kind of implied consent by the governed — we agree to lower privacy protections in this instance in exchange for the flow of goods and people across the border. By and large, we’ve deemed this an acceptable burden in the physical realm because we’ve felt capable of shielding our privacy in other ways. Generally, travelers know exactly what’s in their personal items and luggage, and most objects can simply be left at home. To the extent we have anything we’d rather the government not see, it’s easy enough to ensure it never enters this zone of enhanced scrutiny.

However, due to the increasing complexity and omnipresence of technology in everyday life, digital is different. Whether as a result of applications caching copies of data from the cloud or just generally trying to scoop up and retain as much information on our lives as possible, there tends to be much more data on a given device than most people realize. This makes it difficult to protect our own privacy and forces the question: can there really be a valid bargain over privacy interests if we’re not fully aware of what’s at stake?

To the extent that we are aware, even generally, of the information we hold, removing it is one more elusive technological hurdle. And, of course, the means to do so isn’t the only barrier: after all, it would be highly impractical for most of us to delete our sensitive data every time we travel. As the Supreme Court itself mused, cell phones “are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”

It’s not inconceivable that the very bad actors that the government is seeking to catch may be some of the only individuals willing and able to temporarily sever this virtual umbilical cord. Ultimately, if we can’t realistically leave this data behind, then there’s no meaningful choice. Thus any implied consent to surrender our privacy at the border is that much more suspect.

When it comes to international travel, the law, whether written by Congress or interpreted by the courts, needs to catch up with the rapid advancements of technology and their transformative impact on our daily lives. The old doctrines based on containers, pockets and bags are no longer sufficient. It’s time to acknowledge that our relationship with the digital world is special and we should expect our government to treat it as such.

Lars Trautman is a senior fellow with the R Street Institute, a nonprofit group aimed at promoting limited government in Washington, D.C.