Border Crossings, Laptops and the Constitution

A Washington Post article by Ellen Nakashima, Travelers’ Laptops May Be Detained At Border, reported on newly announced powers of the Transportation Safety Administration (TSA) to search and seize electronic devices such as laptops, cell phones and Ipods at border crossings into the US:

Federal agents may take a traveler’s laptop computer or other electronic device to an off-site location for an unspecified period of time without any suspicion of wrongdoing, as part of border search policies the Department of Homeland Security recently disclosed.

Also, officials may share copies of the laptop’s contents with other agencies and private entities for language translation, data decryption or other reasons, according to the policies, dated July 16 and issued by two DHS agencies, U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement.

DHS officials said that the newly disclosed policies — which apply to anyone entering the country, including US citizens — are reasonable and necessary to prevent terrorism… The policies cover ‘any device capable of storing information in digital or analog form,’ including hard drives, flash drives, cell phones, iPods, pagers, beepers,
and video and audio tapes. They also cover ‘all papers and other written documentation,’ including books, pamphlets, and ‘written materials commonly referred to as pocket trash…

Key documents related to this newly announced power include:

United States Constitution Bill of Rights, Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The DHS official policy on laptop confiscation which says: “officers may detain documents and electronic devices, or copies thereof, for a reasonable period of time to perform a thorough border search. The search may take place on-site or at an off-site location.”

The policy stems from searches reported by DHS to have uncovered “violent jihadist materials” as well as images related to child pornography. The child porn case involved Michael Arnold who was stopped at Los Angeles International Airport where Customs and Border Protection (CBP) agents searched his laptop after he returned to the country from the Philippines in July of 2005. The agents found images they said were child pornography. At the trial of the criminal action filed against Arnold, the defendant moved for the suppression of the images and the search. The government argued it had reasonable suspicion that a crime had been committed and that even if they had no suspicion at all, the search was allowed because it took place at a border point of entry.

The District Court for the Central District of California ruled in favor of the defendant in U.S. v. Arnold, 454 F.Supp.2d 999 (C.D.Cal.,2006) finding that the CBP officer who conducted the search did not have a reasonable suspicion. The court entered an order suppressing the evidence obtained in the search of Arnold’s laptop. That decision was reversed by the 9th Circuit Court of Appeals in U.S. v. Arnold, 523 F.3d 941 (9th Cir. 2008) stating “Arnold has failed to distinguish how the search of his laptop and its electronic contents is logically any different from the suspicion-less border searches of travelers’ luggage that the Supreme Court and we have allowed…” and that “reasonable suspicion is not needed for customs officials to search a laptop or other personal electronic storage devices at the border”.

The US Senate Committee on the Judiciary Subcommittee on the Constitution held hearings on “Laptop Searches and Other Violations of Privacy Faced by Americans Returning from Overseas Travel” on Wednesday, June 25, 2008 with Senator Feingold presiding as Chairman.

Travelers who want to minimize exposure of their personal information are advised to clean up their laptops and other devices before leaving the country, including email and client data, old love letters and photos, as well as the browser’s cookies, cache and browsing history. Turning off laptop computers before going through customs is a good idea.