As we’ve acknowledged before, our lives are increasingly contained on our digital devices, which makes travel—and the decisions we make about what to carry with us—increasingly complicated.
A recent case in which two young travelers to Israel were requested not simply to provide their laptops for arbitrary searches, but to log in to their e-mail accounts and allow Israeli officials to search through their e-mail for specific strings and correspondence highlights the increasing obstacles to privacy that travelers face, as well as the increasingly global nature of security theatre.
In that particular case, the two young women—both of Palestinian origin—complied with officials’ requests but were nonetheless detained overnight before being deported. In another, similar case, a U.S. citizen who refused access to her email was told she was probably hiding something and was refused entry to the country. Israeli security (Shin Bet) told a reporter that “the actions taken by the agents during questioning were within the organization’s authority according to Israeli law.”
Not unlike travelers to the U.S., travelers to Israel face serious privacy challenges at the border. The government generally has broad authority to search through your personal possessions, including your laptop, for any reason at all. When you cross the border to Israel, the Israeli government retains the authority to question you and examine your belongings, which it interprets as also allowing it to go through your electronic devices and computer files. More recently, authorities have also been known to demand user passwords to online accounts.
As we state in our guide to U.S. border searches:
For doctors, lawyers, and many business professionals, these border searches can compromise the privacy of sensitive professional information, including trade secrets, attorney-client and doctor-patient communications, research and business strategies, some of which a traveler has legal and contractual obligations to protect. For the rest of us, searches that can reach our personal correspondence, health information, and financial records are reasonably viewed as an affront to privacy and dignity and inconsistent with the values of a free society.
EFF recently asked Jonathan Klinger, an Israeli attorney, for his thoughts on the law and government practices that apply to searches at the Israeli border, and here is his analysis.
The Situation at the Israeli Border
At the Israeli border, there are some limited legal protections against the search itself. Based on a collection of experiences, however, it seems that mentioning these protections to border officials can be considered antagonism, and can limit your ability to enter Israel. Those concerned about the security and privacy of the information on their devices at the border should therefore use technological measures in an effort to protect their data. They can also choose not to take private data across the border with them at all, and then use technical measures to retrieve it from abroad.
There is, however, little to prevent a scenario in which one’s email is searched, as refusal to allow the search may result in deportation. With that in mind, concerned travelers should think ahead and review their online accounts before traveling.
Why Can My Devices Be Searched at the Border?
Article 7 of Israel’s Basic Statute of Human Dignity and Freedom1 states that every person is entitled to his privacy, and that his property may not be searched, apart from where it is required under legal authority. This generally means that the government has to show probable cause that a crime has been committed and get a warrant before it can search a location or item in which you have a reasonable expectation of privacy; moreover, a recent Supreme Court ruling stated that there is no such thing called consensual search,2 and where there is no probable cause, the state cannot rely on a person’s consent in order to search in his possessions. But searches at places where people enter or leave Israel are subject to different statutes. The two applicable statutes are the Aviation Act (Security in Civil Aviation), 19773and the General Security Service Act, 20024; the two acts altogether provide two different state authorities the right to search on a person’s body and in his property. However, they do not refer to computer searches at all.
The Aviation Act allows security personnel, police officers, soldiers and members of the civil defense forces to search at border crossings if “the search is required, in [the officer's] opinion, to keep the public’s safety or if he suspects that the person unlawfully carries weapons or explosives, or that the vehicle, the plane or the goods has weapons or explosives.”
Similarly, the General Security Service Act states that in order to prevent unlawful activities, secure persons or any other activity that the government authorized with the approval of the Knesset committee for the Shin Bet5 to perform, any employee of the Shin Bet (the service) may search a person’s body, property, baggage or other goods and collect information, as long as the person is present.
Only in extreme cases, where there is an object that needs to be seized for a vital role in the Shin Bet’s activity, can the Shin Bet also search without a person’s presence.
However, nothing in these acts authorizes computer searches. Recently, the Israeli Justice office proposed a new anti-terror bill,6 which is yet to pass through the legislative process. This Anti-Terror bill does request to correct the current General Security Service act to specifically state that computers may be searched.
How the Government Searches Devices at the Border
There are three government agencies primarily responsible for inspecting travelers and items entering Israel: the General Security Service (Shin Bet), The Customs Authority and the Immigration authority.
The law gives the Shin Bet and other officials a great deal of discretion to inspect items coming into the country. There is no official policy published in respect to border search of electronic devices and accounts. And when recently requested to comment, the Shin Bet stated that its acts are “according to law.”
Recently, the Israeli Foreign Ministry admitted that it used Facebook in order to create a blacklist of activists who were then—along with a number of uninvolved and mistakenly identified individuals—banned entry to the country amidst the Flytilla events. If you are active on one or more social networks and express opinions about Israel, you carry a greater risk of being profiled and selected for search.
Keep in mind that the Shin Bet can keep your computer or copies of your data for “the time required for the seizure.” There is no specific consideration regarding forensic practices and the ways that your computer files may be copied during the seizure. This is unlike the Israeli Criminal Procedure Order (Arrest and Search), 1969,7 which deals specifically with the forensic procedures of copying computer materials and requires two witnesses for any file duplication.
The Israeli Customs Authority, under Article 184,8 allows any customs official to search every person for contraband or drugs given probable cause. Moreover, the customs official may also request urine, blood or saliva samples and request persons to undress. However, nothing in the law allows them to search through computer materials.
In short, border agents have a lot of latitude to search electronic devices at the border or take them elsewhere for further inspection for a short period of time, whether or not they suspect a traveler has done anything wrong.
We do not have the exact numbers or methods of how such searches are handled, and the Shin Bet is exempt from the Israeli Freedom of Information Act.9; However, the frequency of technology-oriented searches at the border may increase in the future. Researchers and vendors are creating tools to make forensic analysis faster and more effective, and, over time, forensic analysis will require less skill and training. Law enforcement agencies may be tempted to use these tools more often and in more circumstances as their use becomes easier.
Travelers should consider taking the same precautions outlined in EFF’s guide to carrying digital devices across the United States border.