When you endeavor to cross a border, you give up many of your 4th Amendment protections against illegal search and seizure. To put it another way, a search at the border, absent probable cause – or even reasonable suspicion, for that matter (a lower standard) – isn't an illegal search. Lawyers are well aware of this, but what about the general public?
Two issues are triggered here. The first, privacy, I've written about before (see my International category). Also, the mere act of crossing the border with certain ESI on your device (and many paper documents, for that matter) may violate the privacy laws of the country you seek to enter (possibly criminally).
However, today's discussion is a little more nuanced than that. It's one thing to be granted the right to search a person, their luggage and their electronic devices for a bomb; but does that right extend to the contents of the device? Well, the short answer is, yes. Is that proper? Do you agree?
I suppose this might bring new meaning to the retort, "Don't touch my junk!"
Say you have a password-protected file with your personal banking, credit card and other financial information on it. Now let's go one step further. Suppose it's a company laptop, the file contains your employer's financial information and it contains evidence of a crime? Two steps further? You keep both personal and corporate information on it (does that sound like you?). What's the difference between a federal official accessing it at the border versus going into your bank, demanding the key and opening your safe-deposit box – without a warrant?
I'll tell you the difference. When you show up at the border, it's implied consent. You waive your right to protest. That's how the law stands now. However, that may – or may not – change, subject to the outcome of the latest challenge.
In the meantime, this is a cautionary tale for executives who travel internationally; oh, and don't forget your charger.
