A Federal Court has just upheld warrantless border searches conducted at or near our nation’s borders. These searches may include an examination of the contents including photographs contained in your camera, smart phone or digital device. If you are a photojournalist returning from a stint in say the Middle East, be prepared to be detained and questioned.
Here on Fox news is a precise and sobering two plus minutes on this. And here is an in depth article on this in the New York Times. It is nothing less than required viewing and reading for photojournalists and anybody else who takes pictures for that matter:
In the days of film, many of our photojournalist friends would routinely ship rolls (processed or otherwise) out of certain countries via mail, motorcycle courier or other rather clever means, so as not to have their film confiscated at some foreign border and/or face arrest. We have always suggested to those brave enough to go to hot zones, that they transmit all of their digital images from remote locations back home so as to have a “clean” device at foreign exit and domestic entry points.
There is simply no reason to keep any “sensitive” imagery on hand for customs or immigration officials to examine while you sit in detention at an airport, rail terminal or check point. Whether the current ruling will be reversed sometime in the future by a higher court is unknown. Having a private cloud to upload to doesn’t look so bad now.
As for now, we invoke our favorite cliche’, “Better safe than sorry”.
#1 by Wayne on January 16, 2014 - 7:18 am
An unfortunate decision, While I understand the need for customs to search for contraband and to enforce import taxation duties, I question how an intangible such as solid state memory or the magnetic zones on a hard drive can be considered as an item which prohibited or taxable by duty.
I can imagine some cases where pure information might be considered contraband, classified documents being the first which comes to ind, But would a customs officer know one if he saw it? Especially if it were not labeled?
#2 by Wayne on January 16, 2014 - 8:00 am
Given a little more time to thin I find myself thinking of Benjamen Franklin’s Line from a letter to the appointed governor of the Pennsylvania colony in 1755 “Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.” And while taking one sentence out of a letter regarding war time taxation (for the purpose of funding a common defense of the colony) might be ignoring some context, I think it is still relevant to today’s discussions over National Security.
#3 by Edward C. Greenberg on January 21, 2014 - 2:37 pm
The government’s talking points are not so much centered on revenue collection as on national security. You raise an excellent point in that few if any “inspectors” would have a clue as to whether the photos or information on your device were of any importance or posed a security threat. Note in the case we cited that the feds held on to the laptop for 11 days – to have it gone over by persons with some form(s) of national security expertise. Unfortunately, we don’t think Orwell is required reading for employees of TSA, NSA and so on.
All political and philosophical debates about privacy (or what is left of it) aside, our practical, real life advice is to send your images “home” and have them waiting for you well before you open your front door.
#4 by Edward C. Greenberg on February 1, 2014 - 4:25 pm
Answering an excellent question sent directly to me at [email protected]:
“Yes”, you should definitely assume that images containing nude or partially nude persons or models -especially persons remotely appearing to be under the age of 18 – would receive heightened scrutiny. Such images could likely be treated by border officials in the same manner as illegal contraband, evidence of a crime such as distribution of child pornography or as in the case you refer to, the border officials merely wanted to entertain themselves by looking at provocative photography while you cooled your heels for a few hours.
The very same suggestions we gave for politically sensitive imagery would apply to any images which could by any stretch of anyone’s imagination be considered “sexually suggestive” or “pornographic”. Additionally, border officials in several countries with strict anti-Gay laws would likely (at least) seize such imagery and detain and/or arrest the photographer if the images were considered to be in their sole discretion “homoerotic”.
Whether those very same images might be routinely and casually viewed in the USA or EU as “high fashion” would be totally irrelevant to border personnel in many spots in Africa, Asia, Russia and some of the former USSR republics.
#5 by Ken Brown on February 5, 2014 - 6:53 pm
The article didn’t mention that the “border” zone is not just at border crossings, but extends 200miles (from memory) in from US borders. This would include all of San Diego, CA. In theory, customs agents could confiscate electronics devices from anybody in the greater San Diego area. While this may not have happened, we the people should not be complacent and believe that it will never happen. The NSA has recently relied on arguments regarding it’s data collection activities based upon broadly worded legislation.
The practice of deep searching somebody’s electronic devices is only going to catch the less intelligent criminal. As the article and Ed’s comments state, there are simple ways to upload data or photos to a password protected FTP server (Skip “cloud” services) in encrypted form and wipe the data from all the storage media you are carrying. If the border guards are only examining a dozen or so devices, why not eliminate the practice all together? I know the answer. It makes what they are doing so much simpler than going through traditional procedures and eliminates liability the 99% of the time they are wrong.
Scenario: I have a job as a field service technician servicing x-ray machines for a medical company and I cover all of North America and occasionally Europe. I am going to be traveling with a smart phone to stay in touch with the office, a laptop to keep copies of service manuals and to complete paperwork relating to work orders, a camera to document my work (we’ll assume I’m not using my phone’s lousy camera) and, possibly, a tablet of some sort. This example is so common, I can only attribute Judge Korman’s comments that there is no need to cross the border with these items to early onset Alzheimer’s disease. We live in an electronic world now. If I were to have these items confiscated for any period of time, the company I work for would have to spend thousands of dollars to replace them immediately so I could return to the field not counting the down time while data files and programs are installed on the new laptop and a replacement reprogrammed phone is overnighted. There might also be delays in being able to bill clients without having access to photos or authorizations contained on the laptop. Normal operating procedure might be to upload all of this data to company servers each evening, but the internet may be down at the Redland Cottage B&B in Moose Jaw, SK and I have to wait until I have suitable access the next day after my return to the US. There are also many other situations where confidential and/or time sensitive data might be being transported “by hand” instead of electronically.
I keep hoping that our so-called government will decide that being secure in our papers also encompasses electronic documents.
#6 by Edward C. Greenberg on February 13, 2014 - 5:50 pm
You raise some excellent points. My understanding (I’m not an expert on this) is that US border personnel can use this authority up to 100 miles from the physical border.
One of my longtime colleagues is a former Bronx, NY Assistant District Attorney. She worked homicides and other heavy cases. She taught me long ago that, “If criminals weren’t stupid we would never catch them”. She is also fond of saying that (for the most part), “If the perp has a brain and nobody rats him out, he’s not getting caught”.
So considering that most people aren’t that bright and criminals are likely dumber than most, the techniques which correctly seem dumb to you as a sophisticated person, are probably effective nevertheless.
Thanks for some great observations.