The Perceived Intrusiveness of Searching Electronic Devices at the Border: An Empirical Study

Abstract

This paper presents new empirical data that seeks to quantify the privacy interests and expectations of regular people in the context of a border crossing. Courts have previously disagreed about whether travelers understand that their electronic devices are subject to search at the border, and whether such searches are more intrusive than routine examinations of traveler luggage. The data presented here show that, consistent with the view the 9th Circuit recently adopted in its controversial Cotterman decision, ordinary people believe that searches of their electronic devices impinge more on their privacy and dignity interests than do most traditional searches. In fact, survey participants tended to rate electronic searches as being almost as intrusive as strip and body cavity searches. In addition, the overwhelming majority of participants believed that their electronic devices could not be searched at a border crossing unless the customs agent had some level of individualized suspicion, suggesting that current doctrine creates substantial risk of surprise. These data will hopefully serve to shed light on the new issues raised by searches of electronic devices in an era of smartphones, tablets, and cloud computing.