Abstract

An analysis of the Department of Homeland Security’s 2009 Directives on Border Searches of Electronic Media reveals the difficulty in striking a balance between protecting government interests in protecting the borders and preserving travelers’ privacy interests. The 2009 Directives take some steps towards reaching this balance. They do not, however, adequately protect travelers’ privacy interests, especially when taking into account the vast amount of personal information that electronic devices now carry. I make three suggestions to better strike this delicate balance: (1) Border officials should be required to have at least some reasonable suspicion before searching an electronic device; (2) Congress should require the DHS to conduct annual studies of their border searches, report their findings to Congress, and annually issue updated and concrete directives; and (3) Congress should require airlines to better inform travelers of the broad authority that border officials have in searching electronic devices.