Contributing Lawyers


Cyndee Todgham Cherniak

United States

Susan Kohn Ross


Andrew Hudson

New Concerns About Privacy at U.S. Border

On August 20, 2008, the Washington Post reported in an article entitled " Citizen's U.S. Border Crossings Tracked: Data From Checkpoints To Be kept for 15 Years" that Customs and Border Protection has been "using its system of border checkpoints to greatly expand a database on travelers entering the country by collecting information on all U.S. citizens crossing by land, compiling data that will be stored for 15 years and may be used in criminal and intelligence investigations."

Data on international air travelers (including U.S. citizens) has been tracked for years. However, in 2008, CBP agents began to log the arrivals of all U.S. citizens across land borders, through which about three-quarters of border entries occur. 

By June 2009 and the full implementation of the Western Hemisphere Travel Initiative, all travelers crossing land borders will need to present a machine-readable document, such as a passport or a driver's license with a radio frequency identification chip.  The Washington Post reports that starting in January 2008, border agents began manually entering into the database the personal information of travelers who did not have such documents."

There are questions whether privacy laws are being breached or stretched yet again.  The data can be shared between government departments, read by any number of government official and, therefore, could be used beyond determining whether a person may enter the United States. For instance, information may be shared with foreign agencies when relevant to their hiring or contracting decisions.

The Department of Homeland Security is justifying the collection and retention of data for 15 years on the basis that bad people take time to plot bad activities.  This is probably true.  Most good people have nothing to hide and want the government to stop the bad people.

However, more good people cross the border than bad people.  The real questions should be whether adequate privacy protections are in place to protect good people?  Whether protections are in place to protect good people from government officials misinterpreting information?  Can good people access their records?  Can good people be assured that their records will not be obtained by others?  Can good people be assured that their records will not be accessed by people wanting to to them harm (e.g. identity thieves, litigants in litigation against them, stalkers and other predators who happen to have government jobs or who have hacked into government computers)?  Will good people be pulled off the streets and asked to account for their travels 14 years ago?  What rights will the good people have to respond to government accusations?  How much will it cost good people in terms of money, stress, reputation?


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