Surrender Your Devices or Be Turned Away: Privacy Rights at the Border

Abstract

Recent revelations of mass surveillance programs used by the National Security Agency has triggered a shift in concerns over the information that we carry in our portable electronic devices remaining private. The public is becoming more protective of their personal information and apprehensive regarding who collects, stores and uses it. One major area of concern is that of information being carried with international travelers becoming subjected to a search without a search and seizure warrant at our nation’s ports of entry. Under the Border Search Doctrine, found within our Fourth Amendment, agents have the right to search inbound travelers for contraband, which is generally considered reasonable for the state to do to protect its citizens. However, when this doctrine is applied to electronic devices, the amount of information that likely would be accessed is vast and variable, potentially triggering our Fourth Amendment protection. This article discusses the standards of privacy under the Fourth Amendment, its border search doctrine, issues surrounding self-incrimination, other challenges, and a possible legislative solution that could protect passengers’ information as it passes through a port of entry into the United States.