CBP Policy Allows for Laptop Searches upon Entering the U.S.
Posted Sep 05, 2008
©MurthyDotCom
The U.S. Customs and Border Protection (CBP) issued a statement (PDF 160KB) in mid-July 2008 regarding CBP policy on border searches of information. The search for information extends to documents and electronic devices. In addition to providing search procedures, CBP asserted that the inclusion of information in a border search is permissible without individualized suspicion of the person seeking to cross the border. Critics argue this policy runs contrary to the U.S. Constitutional protections against warrantless searches and seizures. However, the Ninth Circuit Court of Appeals recently held that the search of one's laptop at the border is permitted without reasonable suspicion.
©MurthyDotCom
Possible Criminal Charges based on Laptop Data
©MurthyDotCom
In the case of United States v. Arnold CBP (PDF 64KB), officers searched, without suspicion of illegal activity, the laptop of a traveler and discovered images of what appeared to be child pornography. The laptop was seized and a warrant obtained. The individual was charged with various crimes related to transporting and possessing child pornography.
©MurthyDotCom
The defendant / traveler filed a motion to suppress the evidence, arguing that the search was conducted without reasonable suspicion, as normally required under the U.S. Constitution. The court analyzed in detail whether the situation fit within certain exceptions to the need for reasonable suspicion when searches are conducted at the border. The court found that this circumstance fit within the border search exception to the need for reasonable suspicion and therefore was permissible.
©MurthyDotCom
DHS Defends Laptop Searches
©MurthyDotCom
In a statement before the Senate Committee on the Judiciary Constitution Subcommittee, CBP Deputy Commissioner Jayson Ahern said that laptop searches are essential to prevent terrorist organizations from transporting information over the border. In a Leadership Journal website entry, Deputy Commissioner Ahern defended the practice, citing instances of laptop searches that uncovered information about cyanide, nuclear material, improvised explosive devices (IEDs), and visa fraud information. Without laptop searches, Deputy Commissioner Ahern argues, these threats to national security would have disseminated within American borders.
©MurthyDotCom
Probable Cause Required to Confiscate Laptop
©MurthyDotCom
The CBP's policy contains some restrictions. Although suspicion is not required to search laptops, probable cause is required to confiscate these devices. If CBP officers do not find any data that gives them probable cause, they are not permitted to seize laptops or any other personal belongings of one who is crossing the border.
©MurthyDotCom
The U.S. Supreme Court has indicated that some level of suspicion is required for searches that are destructive in nature. But no such cases involving laptop searches have made their way to the courts for decision on that basis.
©MurthyDotCom
Response of CBP on Privacy or Business Concerns
©MurthyDotCom
Critics of CBP's pervasive search powers have argued that such searches violate privacy rights, especially when involving data on laptops that is intellectual property, confidential business information, or otherwise proprietary in nature. Deputy Commissioner Ahern responded to this criticism, pointing out that CBP officers are bound by law from disclosing business confidential information as part of their official duties.
©MurthyDotCom
Deputy Commissioner Ahern also stated that, out of 400 million travelers passing through U.S. borders annually, less than one percent of them are selected for the secondary search, including search of laptops. CBP believes this approach balances privacy and national security interests.
©MurthyDotCom
Be Aware of Contents You Carry When Crossing the Border
©MurthyDotCom
Individuals crossing U.S. borders need to be aware that their computers, other electronic devices, and documents can be searched by the CBP. Travelers need to know what is on their computers and consider those contents as an open book to CBP when traveling. If the computer has been used by anyone other than the individual who is carrying it, s/he should check the browser history and take all necessary measures to make sure that the contents will not create problems if searched. Blaming one's friend for illicit content is not likely to be an acceptable or believable excuse. Just as one never should carry unknown packages when traveling on an airline, one never should carry unknown data or picture files.
©MurthyDotCom
Conclusion
©MurthyDotCom
One who travels into the U.S. at any land, sea, or air border or port is now subject to searches in a nature and of the type that would not have been conceivable in a pre-9/11 world. MurthyDotCom and MurthyBulletin readers should be aware of the possibility that a border search in this day and age may include not only baggage, but information in all forms, including electronic information.