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     searches

This page considers searching at border crossings, something that many people take as a given and others question as inappropriate, particularly where officials access and copy laptops or other devices.

It covers -

• introduction - the shape of historic and contemporary regimes
• legal frameworks - international and domestic law
• bodies - cavity and other searches
• bags and cargo - interdiction of contraband
• devices - checking what's on your laptop, phone or iPod?
• elites and the disadvantaged

More information on particular aspects is provided in the discussion of encryption as part of the Security & InfoCrime guide elsewhere on this site and in a note on compulsory provision of passwords.

     introduction

For much of history the likelihood of a search of an individual's person and belongings, rather than a demand to produce official identity papers, has been a characteristic of crossing a border.

That searching has traditionally reflected the reliance of pre-industrial states on customs revenue, rather than universal taxation of personal income. It has also reflected official efforts to exclude heterodox or subversive ideas and practices (along with the bearers of those ideas) by seizing publications, correspondence and commodities. Borders have played a fundamental role in sustaining censorship regimes.

Increasing sophistication of the state has seen customs posts serve as points for checking and excluding intellectual property (for example pirated pharmaceuticals, videos and clothing) and for maintaining phytosanitary restrictions. Visitors to, and indeed within, Australia thus for example encounter requests to divest themselves of fruit, seeds, meat and other items that might be vectors for the transmission of diseases and pests that would affect the nation's agricultural production and wildlife.

For many international travellers borders embody the potential for official examination in search of illicit drugs or items intended for use in terrorism. That examination may involve close scrutiny of baggage, removal of clothing and inspection of body cavities. It may also involve use of x-ray or other devices that 'scan' the person. Examination typically does not require a warrant and often does not require 'reasonable suspicion' that the person is carrying drugs or explosives, possesses child pornography or terrorist information, or is otherwise an appropriate target for questioning.

Contrary to utopian visions of imminent evaporation of the state in a borderless global economy, the potential for searching remains significant. A defining attribute of the state, indeed, is that it has the authority - and often the day to day to day capability - to mark its borders and to examine who/what seeks to cross those borders.

International law provides particular protection for diplomats (ie their persons and baggage). Ordinary people are liable to be searched, with varying degrees of invasiveness and varying criteria, depending on which border is being crossed and the focus of national anxieties.

Some people - whether because they fit a law enforcement profile (for example are perceived as more likely to be drug traffickers or terrorists because of their age, ethnicity and travel history) or because they are poor and perceived as lacking support by an international or domestic community - are likely to be examined with greater stringency. That examination may tacitly be intended to demonstrate the power of the particular state or a specific agency, with a message for example that a guestworker or refugee is necessarily inferior.

     legal frameworks

International law does not prohibit searching of people and other entities (animals, personal baggage, letters and other mail, unaccompanied goods.

A range of international protocols instead encourage nations to conduct such searches as part of global or bilateral agreements regarding cooperation to inhibit practices such as people trafficking (in particular sex trafficking), drug trafficking, money laundering, hijacking and domestic terrorism.

Those protocols are significant because their interpretation is at the discretion of national governments. They are also significant because some people in liberal democratic states incorrectly assume that scrutiny of, for example, laptops or systematic use of electronic devices to scan all international airline passengers is either unprecedented or is prohibited by international law.

The shape of domestic law regarding searches varies from jurisdiction to jurisdiction, with differences in statutory requirements (and in case law) and in administrative guidelines covering matters such as whether body searches of female passengers must only be conducted by female officials, whether an interpreter must be present, whether information sighted by officials during a search can be copied and retained indefinitely by those officials.

Migration, customs, finance, postal and national security/defence law typically provides national governments with extensive powers to question and physically examine people and other entities that are entering the particular nation. In many ways the border is where the nation state is strongest, or simply most visible.

Statute and common law also often allows searching of people leaving a jurisdiction. That searching may be outside law concerned with air safety (eg carriage of dangerous goods or attempts to seize an aircraft, such as national law giving effect to the 1963 Convention on Offences and Certain Other Acts Committed on Board Aircraft aka Tokyo Convention 1963).

Courts in Europe, North America, Australia and New Zealand have typically accepted claims by national governments regarding wide powers of searching at the border, for example warrantless searches of travellers and their laptops. On occasion those courts have indicated that administration is defective (eg that particular body searches, such as use of male officials to conduct cavity searches of female travellers in situations where female officials were available, breach obligations under national or even international human rights law).

An area of particular concern is where governments have delegated searching to private sector contractors whose staff on occasion are poorly trained, poorly paid, poorly supervised and - in the US, most egregiously - may not even be citizens.

     bodies

The integrity of bodies, alive or dead, is one of the central and necessary myths of the liberal democratic state.

Most citizens have an expectation that they will not be subject to search by police or other officials except in exceptional circumstances, that searches will not include rectal or other internal examination and that searches will be strictly based on warrants (orders by a court) rather than on an arbitrary basis at the discretion of individual officials or on the basis of ethnic or other 'identity' profiling. (Passenger profiling was discussed in more detail here.)

Border regimes typically allow customs and other border officials to scrutinise the bodies of people seeking to enter - and, to a less extent, leave a nation's jurisdiction. That scrutiny does not necessarily require an order by a court that is specific to the individual who is the subject of scrutiny. It also does not require what many citizens would perceive as 'reasonable suspicion'.

Scrutiny may involve x-ray or other scanning of the person. That is considered by some to be less offensive or less threatening than traditional mechanisms such as use of sniffer dogs or 'pat down' searches in which officials touch the person in an attempt to discern whether the subject has concealed money, drugs or other items in a belt, brassiere or pouch.

It is considered by others to be more threatening, with claims since 9/11 that some airport scanning technologies allow male officials to electronically undress women, often in locations where the monitor can be seen by passers by.

Requirements that travellers physically disrobe, particularly where clothing is taken away for inspection by officials, understandably remains controversial. A point of reference is 'Rating the Intrusiveness of Law Enforcement Searches and Seizures' by Christopher Slobogin & Joseph Schumacher in 17(2) Law and Human Behavior (1993) 183-200.

Undeniably in some circumstances it is useful for officials to verify that -

• drugs, weapons, prohibited plants or other matter is not being concealed under clothing
• use of veils or other coverings does not allow people to evade identification restrictions and thereby subvert law regarding terrorism, bankruptcy and child custody.

Physical contact with bodies, including use of endoscopes and digital examination of body cavities, is more contentious. It is typically allowed under customs and other border law, with some travellers accepting that a consequence of attempting to move across a national border may be having an official's fingers in your mouth or rectum.

It has been accepted by courts in cases such as U.S. v. Montoya de Hernandez (1985), in which the US Supreme Court endorsed a warrantless rectal examination by officials of a woman travelling from Colombia to Los Angeles.

The Court acknowledged that the officials had no "clear indication" that the woman had swallowed balloons filled with cocaine and thus did not have "probable cause" for the search, with a minority of justices commenting that De Hernandez experienced "the hallmark of a police state". The majority referred to a "veritable national crisis in law enforcement caused by smuggling of illicit narcotics", noting that searching was traditional and necessary. (Rectal examination of De Hernandez indicated that she was a drug mule, with 88 balloons in her alimentary canal.)

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