In this post we look at how your laptop may be treated at a South African Airport and the possible impact of this on your right to privacy.
Nowadays, more and more people work flexi hours, from home or live and work in different cities by choice and thus travel on a regular basis. Technology and readily available Internet access makes this possible. People using laptops and peripheral equipment is a common phenomenon and one can barely imagine flights without travellers using laptops, portable hard drives and memory sticks. Part of travelling experience entails having your laptop screened by the scanners together with your other hand luggage when you check in for your flight.
they can search your laptop without a warrant
This irritates many people. Things could be worse: Did you know that the Airports Company of South Africa (ACSA), the Company that owns, manages and operates South Africa’s ten principle airports, may even go further and not only screen, but also search your laptop! You may think that they need a warrant to do this. Wrong. The Civil Aviation Offences Act 10 of 1972 (“the Act”) allows them to search your laptop without a warrant.
Privacy in South Africa: In terms of South African law, the right to privacy is recognized and protected in both the common law and in section 14 of the Constitution of South Africa 1996. In both instances the right is fairly limited and to prove an infringement may be difficult. Therefore, we need legislation to regulate these issues, especially issues relating to the privacy of data. Currently there is also no case law on this particular aspect.However, there is pending data privacy legislation in the form of the Protection of Personal Information Bill (PPI Bill) which is currently being drafted by the South African Law Commission. The PPI Bill may address some vital questions relating to privacy issues, especially with reference to data (including the data on your laptop). These include for example (i) the type of data you may have on your laptop; (ii) the measures you must take to ensure the integrity of the data; (iii) the circumstances under which you may disclose certain data and (iv) the time period that you may keep the data.
Aviation law in South Africa: In South Africa aviation is regulated by various pieces of legislation, the codifications of the International Civil Aviation Organization (ICAO) (of which South Africa is a member state), and the Civil Aviation Regulations, (regulations developed by the South African Civil Aviation Authority (SACAA) – an independent authority established in terms of legislation). SACAA promotes, enforces and regulates civil aviation safety and security in compliance with the standards set by the ICAO. These Civil Aviation Regulations were amended some years ago to allow for 100% hold-baggage screening for both domestic and international flights. This means that they must implement realistic and reliable mechanisms for the screening of every item that is loaded onto a flight. In other words, not only your bags, but also your laptop and other devices will be screened by the X-ray machine when boarding for a flight. Further to this, the Act makes provision for the “identification, search and seizure of any person embarking on or disembarking from an aircraft or baggage or cargo being loaded on or off from an aircraft” by certain authorized people in terms of the Act. These searches may be carried out without a warrant. In other words, the Act allows for your laptop not only to be screened through the X-ray machine, but to be searched by border officials. South African Airways also regulates baggage searches by way of agreement. Their Luggage and Liability Conditions Policy states that: “For reasons of safety and security we may request that you permit a search and scan of your person and a search, scan or x-ray of your Baggage.” This is accordingly in line with the provisions of the Act.
The State’s duty: An individual’s right to privacy is an internationally accepted principle. Similarly we expect from the State to enforce the necessary mechanisms to defend its citizens from people wanting to cause harm to a country and its residents. One need to find the balance between an individual’s expectations to privacy on the one hand and the State’s obligation to protect the country from illegal material and/or acts that can cause harm to its people, on the other hand. Unfortunately laptops and other electronic equipment can be used in acts of terrorism and to transport bombs. Therefore the State needs to implement mechanisms to search laptops at airports if necessary.
In Practice: In practice, it seems that whilst you can expect your laptop to be screened by the X-ray machine, the general principle currently is that your laptop will not be searched and you will most probably not be asked to open or log onto your laptop. Apparently only where the officer on duty suspects that the laptop has been tampered with, for example if it seems that screws have been taken out, will a person be asked to open a laptop for searching purposes. It is important to note that this is only the current practice. The reality is that under any circumstances an authorised person may indeed search your laptop.
Privacy legislation: Will this search infringe your right to privacy? Most definitely. Will the infringement be justifiable? Without any legislation of case law to the contrary, probably yes. But what will happen once the data privacy legislation gets enacted? The answer to this remains to be seen. The type of and status of information a person may have on a laptop is important in the consideration of the infringement to the general right to privacy: Where the contents are of a personal nature, the infringement may not be considered to be that serious. This may very well differ in instances where the contents on the laptop include sensitive and/or privileged information and business related information.
Conclusion: Best we can advise is to consider the data you carry on your laptop carefully. Can you insist that your laptop be left unsearched? The current answer to this question is no. Whether the enactment of the PPI Bill will change this, we’ll hopefully see in the future.