Quincy. A U.S.
David Moser

Technically, when you arrive at an international border, you are not in the country until you are admitted, and your privacy rights are non-existent. In the United States, the DHS invokes the provisions of the United States v. Arnold, 523 F.3d 941 (9th Cir. 2008), cert. denied, 129 S.Ct. 1312 (Feb. 23, 2009) case where the Ninth Circuit joined with the Fourth Circuit to hold that the warrantless, suspicionless search-and-seizure of laptop computers and other electronic storage devices is permissible at the border.

This is especially important for executives traveling internationally with confidential or proprietary information, since they can’t be sure their devices, and the data contained, won’t be subject to a full inspection or possible detention, including the decryption and analysis of data, and shared with other government agencies. The DHS paper says that:

In most cases, when CBP or ICE keeps the device and the traveler leaves the port without it, the electronic device is considered ‘detained’… In a detention, CBP or ICE will keep either the original device (e.g., the laptop) or an exact duplicate copy of the information stored on the device, so as to allow the traveler to proceed with the original device… When CBP detains an electronic device under its border search authority, the device may be shared with ICE or another federal agency for analysis.

Not only do the CBP and ICE have the ability to detain an electronic device, releasing the passenger, but they can also enlist the help of others, including private security firms. The same DHS document claims they have “statutory authority to demand assistance from any person or entity,” and that they can request the services of third parties for technical assistance, translation, decryption, or any other needed to access and understand the information.

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