New US Digital Border Search directives

The US Department of Homeland Security (DHS) announced last week new directives to enhance and clarify oversight for searches of computers and other electronic media at U.S. ports of entry, justified as "a critical step designed to bolster the Department’s efforts to combat transnational crime and terrorism while protecting privacy and civil liberties". Border searches as an issue flared up last year when a group including the Electronic Frontier Foundation (EFF), the American Civil Liberties Union and the Business Travel Coalition, published an open letter calling on the House Committee on Homeland Security to limit searches to be appropriate and non-invasive. The purpose of the latest policies is

To provide guidance and standard operating procedures for searching, reviewing, retaining, and sharing information contained in computers, disks, drives, tapes, mobile phones and other communication devices, cameras, music and other media players, and any other electronic or digital devices, encountered by U.S. Customs and Border Protection (CBP) at the border

Notice that the scope of devices that can be searched is quite broad. And well it might be, since the policy is designed to detect electronic evidence relating to terrorism, human trafficking, bulk cash smuggling, contraband, and child pornography, as well as other run-of-the-mill crimes. Where practical, these searches will be conducted in the presence of a supervisor and the owner of the electronic device.

Devices should only be detained if there is probable cause to believe that the device contains evidence of a crime that border authorities are authorized to prosecute. Devices may be “detained” for up to 5 days without justification, and this period can be extended in the case of extenuating circumstance but requires supervisor approval. The policy also makes clear that your device or a copy of its contents can be sent to another location for additional assistance, which includes requests for translation, decryption, or general subject matter consulting Such requests must be approved by a supervisor, transmitted securely, and processed within 15 days.

The DHS reports that between Oct. 1, 2008, and Aug. 11, 2009, border authorities encountered more than 221 million travellers at U.S. ports of entry. Amongst these travellers, approximately 1,000 laptop searches were performed, and less than 50 of the searches were detailed. So using these figures, your chances of being searched are less than one percent of one percent per traveller volume. However, I think the chances of being searched would be higher if the figures were restricted to travellers who were actually carrying a laptop or some other visible electronic device.