Law Office of Bonnie Stern Wasser
—Bringing People Together—
Travelers Beware: Border Searches of Laptops and Other Electronic Gear
By Bonnie Stern Wasser, Esq.
© 2006
The following is intended as general information and not legal advice. It is not meant to establish an attorney/client relationship.
During this busy holiday travel season, travelers need to be aware of search and seizure laws when traveling internationally with laptops, PDAs, cell phones, iPods/mp3 players, portable hard drives and other kinds of electronic gear containing sensitive personal or confidential business data. Increasingly, border officials are searching and confiscating electronic gear to exclude immigrants from entry to the USA or to bring criminal charges against US citizens and immigrants traveling in and out of the USA. Several recent cases address the legal limits of laptop and electronic data searches. Because US border search authority is very broad, travelers should operate under the assumption that their gadgets could be searched and that nothing contained therein will be deemed private unless one is prepared to litigate the issue. While this is a prime area of law to test the legal bounds of privacy issues, litigation can be expensive and confiscation of equipment can be disruptive to jobs and business. Therefore, the better course of action is to leave your gear at home or limit the data you carry in it. Keep in mind that business cards and address books as well as books and papers among other items can also be searched, scanned and confiscated. This article, however, focuses on electronic data issues.
Who conducts border searches?
Following 9/11, the US Congress combined a number of agencies into the Department of Homeland Security (DHS). It dismantled and broke into three divisions the former Immigration and Naturalization Service (INS), which then included the Border Patrol. The three new divisions of INS became 1) Customs and Border Protection (CBP), responsible for border issues including immigration, customs and agriculture inspections; 2) Citizenship and Immigration Services (CIS), responsible for determining immigration benefits; and 3) Immigration and Customs Enforcement (ICE), responsible for interior inspections, enforcement of immigration and customs laws, and deportation/removal. Thus, today, CBP presents "one face at the border" with officers cross-trained in immigration, customs and agriculture issues. CBP determines who and what products are allowed into the US. CBP liaises with a number of other investigative agencies as do ICE officials. In addition, the Transportation Security Agency (TSA) handles pre-screening services, identity authentication, and maintains the "no-fly" and "automatic selectee" lists. TSA works side by side with CBP to conduct luggage and personal searches.
What constitutes a border?
Borders of the USA include land border ports of entry (POE) (car, truck, train and pedestrian entries), seaports and ferry terminals, and international airports. In addition, the US has agreements with a number of countries to provide pre-flight and pre-cruise inspections (PFI) of US bound passengers such as at Vancouver, BC airport, Victoria, B.C. seaport, and Gatwick International Airport in London, UK, to name just a couple of examples . For a complete list of CBP ports of all types, see http://www.cbp.gov/xp/cgov/toolbox/ports/. It is important to note for this discussion that despite there being separate lines for US citizens and immigrants, everyone is subject to inspection and admission. In addition, inland-based international airports are considered to be "functional equivalents" of US borders. Almeida-Sanchez v. United States, 413 U.S. 266, 272-73 (1973).
What is a border search?
The Fourth Amendment of the United States Constitution protects the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures. This means that a search without a warrant is deemed per se unreasonable except under certain circumstances, one of which is a border search.
Border searches must be reasonable. Their purpose is to regulate collection of duties and prevent contraband and certain persons from entering the USA. United States v. Montoya de Hernandez, 473 U.S. 531, 537 (1985). Border searches are for the purpose of protecting the nation from unwanted persons and effects. United States v. Fores-Montano, 541 U.S. 149 (2004).
Searches that are conducted in the ordinary course of inspecting persons and things crossing the border do not normally require a warrant nor probable cause as these type of searches are considered to be "routine." Typical "routine" border searches include searches of luggage, purses, wallets and pockets.
Border inspections are divided into three types: "Primary" inspection is the first inspection that everyone goes through which is deemed routine such as xray of baggage, walking through a security bridge, and cursory examination of carry-on luggage. In addition, cameras, laptops and other gadgets may be turned on as part of the inspection process. "Secondary inspection" occurs when one is pulled out of the normal inspection line and sent to a separate area for further inspection. This can include an interview, a more detailed search of luggage, and even short or long term detention under some situations depending upon the facts, the citizenship or immigration status of the person and level of suspicion by CBP. For immigrants, they may be released and told to report at a later date to an interior CBP office for a "deferred inspection" or additional interview. These types of interviews generally are held for people who have certain immigration papers but are not carrying them, they cont ain errors, or where there is a reasonable likelihood of clearing up an issue. Foreign visitors seeking asylum at the POE are often put into long-term detention until their asylum cases are decided if they tried to enter without proper documentation. Some immigrants who are deemed ineligible to enter may face "expedited removal" where they are put on the next return flight without a hearing, or they may be given a chance to "withdraw their applications for admission" so that they can return in the future in a more appropriate visa classification. US citizens can likewise be detained if there is suspicion to believe a crime may have been or will be committed.
More intrusive searches of people and luggage require a heightened level of suspicion amounting to probable cause to believe a crime is or may have been committed in order to be deemed reasonable. Just when a routine search can become a more intrusive search based on a heightened level of suspicion requiring probable cause or a warrant is the subject of several cases. Most of these occurred in the secondary inspection phase.
Travelers should also not forget the ramifications of taking laptops and other gadgets outside of the US which can invoke such issues as export control violations, trade secrets, and other national security interests as well as probation violations and other crimes.
Laptops and other devices that contain electronic data raise a number of privacy concerns that must be balanced against the government's need to protect borders, collect duties and prevent contraband and terrorists from entering the US. Other items of interest to CBP that most people think are private include business cards, telephone books or lists, business papers and reading materials. Border stations are now equipped with scanners to make copies of these items.
Typically, during a routine search, people with laptops, PDAs, cell phones, and cameras are asked to turn them on. However, the cases described below, which involve looking more invasively at the data on floppies, undeveloped film, video cameras, laptops and hard drives, address the question of when can the CBP begin to roam the contents of data files without a warrant or probable cause. Are these types of searches still within the bounds of "routine" border searches not subject to warrant or probable cause?
Some courts have analogized laptops to be closed containers like luggage for which the broad authority of routine border searches are permissible. On the other hand, these devices are repositories of all types of personal information in which owners have a reasonable expectation of privacy. Some analogize electronic data to be more like archives and repositories of private information, or as expressive forms of free speech instead of closed containers.
Recent Cases
Most of the laptop cases to reach the courts have involved US citizens entering or leaving the US with pornography downloaded onto their hard drives. Like many criminals, they simply didn’t use their heads. However, due to the variety and types of information people store on their computers, computer information can be used by CBP to deny entry into the US by immigrants if there is information that contradicts their stated intentions in the US for a particular visa category, or to substantiate a wide variety of other crimes that people commit. An example would be a tourist who must show a temporary intent to visit and depart but who has love letters and marriage proposal emails on his laptop evidencing intent to marry a US citizen and stay permanently, which would be a fraudulent use of a tourist status or visa.
The Fifth Circuit Court of Appeals held in United States v. Roberts, 274 F. 3d 1007 (5th Cir. 2001) that a laptop and diskettes owned by a traveler leaving the US could be searched where Customs officers had a reasonable suspicion or probable cause to believe Roberts was leaving the country with child pornography on his laptop and diskettes. In this case, the officers were advised about this prior to Roberts arriving at the airport. The court held that under the non-routine search exception, the officers had sufficient suspicion to lawfully inspect Roberts’ laptop and diskettes.
In United States v. Irving, 2003 WL 22127913 (2003), the Federal District Court for the Southern District of New York stated in dicta that computers are closed containers subject to the routine border search exception to the requirement of probable cause or a warrant. In this case, Irving, a known convicted child pedophile, was returning from Mexico (a location known by investigators to be frequented by convicted pedophiles) with children’s books and drawings in his luggage, undeveloped film and computer diskettes. The Court focused on the diskettes being containers rather than whether the search of their contents was routine or not. However, other courts have held that whether a search can be deemed routine turns on the level of intrusiveness or invasion of personal privacy. Here, the Court found there was a reasonable suspicion of wrongdoing because Irving was already the subject of an investigation and possessed children’s items in his luggage.
The Ninth Circuit Court of Appeals recently held in United States v. Romm, No. 04-10648 (July 24, 2006) that forensic analysis by Immigration and Customs Enforcement (ICE) of a laptop is permissible without probable cause or a warrant under border search analysis. In this case, Romm, a US citizen, downloaded pornographic images of children to his laptop from a hotel room while in Las Vegas. He then flew to Kelowna, B.C., Canada whereupon Canadian Border Services Agency officers learned Romm had a criminal history. He was questioned and admitted his Florida conviction for a child exploitation offense and being then on probation. Romm was asked to turn on his laptop and several pornography websites showed up in the internet history log. Romm admitted that this was a violation of his probation. Canadian authorities then put Romm back on a plane for Seattle. In Seattle, ICE officials interviewed Romm, and he agreed to a search of his laptop but denied there was any pornography on it. CBP used forensics to discover other pornography files in his laptop’s browser cache, which Romm had attempted to delete while in transit to Seattle.
The Court discusses in detail the forensic analysis used to inspect Romm’s hard drive, which by itself is an interesting read for techies. However, Romm’s arguments on appeal did not directly address whether the search was routine or non-routine or whether the facts supported a reasonable suspicion to search his laptop. Therefore, the Court concluded, it need not discuss these issues because they were not properly raised. Id. at 8273 fn.11. The court held the search in this case was a valid routine search. “’Searches made at the border…are reasonable simply by virtue of the fact that they occur at the border.’” United States v. Flores Montano, 541 U.S. 149, 152-53 (2004)(quoting United States v. Ramsey, 432 U.. 606, 616 (1977).” Id. at 8272. Like the Irving case, this very broad conclusion has raised the ire of many privacy experts since then.
In another case, John Ickes drove to the US-Canada border at Ambassador Bridge near Detroit attempting to re-enter the US. Seeing that Icke’s van appeared to have “everything he own[ed]” in it, CBP sent Ickes to secondary inspection for an inspection of his van. Seeing a video camera with a tape of a tennis match “focusing excessively” on a young ball boy, the CBP conducted a more thorough search of the van and discovered marijuana seeds, a pipe and a Virginia warrant for his arrest, along with photos of young, nude and semi-nude boys. Ickes was arrested and detained. A computer search revealed that there was a Virginia warrant for his arrest. Then, his computer and 75 disks were confiscated which were subsequently found to have child pornography.
The Fourth Circuit Court of Appeals held that a statutory provision, 19 U.S.C. sec. 1581(a)(2000), empowered CBP to board a vessel or vehicle anywhere in the US or its waters to examine documents, to inspect and search every part of a vessel or vehicle. United States v. Ickes, No. 03-4907 (4th Cir. 2005). Ickes claimed the statute did not cover electronic equipment. However, the Court held that the statutory language did include electronic equipment that was transported in a vehicle as cargo. Section 1581(a) has been interpreted broadly against the backdrop of the Fourth Amendment’s requirement that searches and seizures be reasonable and that there exists an exception for border searches of belongings without warrants or probable cause. Ickes also claimed that he had a First Amendment right to protection of items that were “expressive.” The Court rejected this argument since even terrorists’ planning communications could be expressive material. The argument would otherwise undermine the primary reasons for border searches in the first place. Finally, the Court found that CBP did not inspect the contents of the computer until they had already discovered the marijuana and albums of child pornography, the video and the warrant. The Court also found as “far-fetched” Ickes claim that the Court’s holding would make ANY person traveling on an international flight with a laptop subject to search of the computer’s hard drive. As a practical matter, by the time a computer is searched to that degree, inspectors already have other evidence of reasonable suspicions to investigate further.
By contrast, however, in United States v. Arnold, 2006 U.S. Dist. LEXIS 73311 (Oct. 2, 2006), a suppression motion case, the US District Court for the Central District of California stated that the:
“Fourth Amendment protection extends to the search of this type of personal and private information at the border. While not physically intrusive as in the case of a strip or body cavity search, the search of one’s private and valuable personal information stored on a hard drive or other electronic storage device can be just as much, if not more of an intrusion into the dignity and privacy interests of a person. This is because electronic storage devices function as an extension of our own memory. They are capable of storing our thoughts, ranging from the most whimsical to the most profound. Therefore, government intrusions into the mind—specifically those that would cause fear or apprehension in a reasonable person—are no less deserving of Fourth Amendment scrutiny than intrusions that are physical in nature.”
The Court held that the correct standard for a border search of an electronic storage device is reasonable suspicion of evidence of a crime. In this case, Arnold was returning to LAX from a long flight from the Philippines. The CBP officer was looking in particular at men in his age range. After being asked to boot up his computer, CBP officers noticed “Kodak Pictures” and “Kodak Memories” files on Arnold’s desktop. He was then asked to click on them. One photo depicted two nude women. Arnold was further detained, his computer and storage devices seized. Two weeks later, a warrant was obtained to search the computer and storage devices. There was no evidence the photo involved minors.
The court noted that in the Ninth Circuit, routine border searches must be reasonable, and that non-routine searches require at least a reasonable suspicion or a “clear indication” or “plain suggestion” that the person is carrying contraband to otherwise justify invasive searches that implicate personal privacy and dignity. Here, the only articulated facts upon which the CBP became suspicious of Arnold were his “disheveled” appearance after a 24 hour flight ( a word the CBP officer testified was attributed to coaching by CBP legal counsel), and the age group then being specifically targeted. In addition, the officer thought it was unusual for a US citizen NOT to become agitated when pulled over for more questioning. Here, Arnold did not yell and scream like most US citizens, according to the officer. However, the court found these facts to be insufficient to constitute articulated facts to justify reasonable suspicion. Further, there was no contemporaneous report of the initial search offered by CBP though, such a report was relied upon to write a memorandum about it a year later. In addition, the initial inspecting CBP officer had difficulty remembering details of the search and her testimony was inconsistent. The court concluded that: “while it is appropriate to turn on or x-ray a laptop or other device to ensure that it functions and does not physically contain drugs or other dangerous substances, a search of the information contained therein requires a reasonable suspicion.” Id. at 6.
Unanswered Questions
Under the container analysis used in other cases, one could argue that electronic hard drives now carry far more information than any luggage container ever reasonably could, including all kinds of personal and business information. This raises additional questions such as whether a CBP officer can demand an encryption key in order to examine encrypted data; or, whether CBP has the right to look at attorney-client privileged information. Can the owner refuse to provide access to a laptop and abandon a trip, thus negating the need for a border search? This might not be useful to a US citizen abandoning a trip back to the US, especially if one would be stranded in a country with harsher laws than our own. Using a laptop abroad to connect to a server back in the US could result in the creation of temporary files of server-based documents that are filed. Or, worse yet, does CBP have authority to demand the password to a company or firm's Virtual Private Network?
Other foreseeable problems with laptop inspections could include using evidence of a low level crime from what officers find on a laptop to be in "plain view" (such as on a desktop at the time the computer is turned on) as a pretext for delving further into the hard drive and files to find evidence of other crimes.
Finally, it should be noted that the preceding cases also demonstrate just how far we have come in the way of data sharing. The US collects and shares with other countries enormous amounts of local, state, federal and foreign criminal conviction information as well as other intelligence. Therefore, a person with a criminal conviction in one country cannot presume the destination country does not know about it. For more information about pre-screening processes and database sharing efforts by the US, see the September 6, 2006 Congressional Research Service Report, Terrorist Watch List Checks and Air Passenger Pre-Screening. http://www.ilw.com/immigdaily/news/2006,1201-crs.pdf.
In conclusion, the US government is greatly expanding its pre-screening and search efforts (despite much controversy with European nations). Although laptop cases have not yet reached the US Supreme Court, passengers cannot expect that the law will necessarily fall in their favor to prevent intrusive government searches of electronic data on laptops and other gadgets. Therefore, it is best not to travel with sensitive, private or confidential information in the first place.
For more information about immigration legal services, contact Bonnie Stern Wasser at (206) 282-2279 or bonnie@bswasserlaw.com.
