Border Searches Reach Laptops, BlackBerrys, Cellphones

As set forth in a detailed article in the National Law Journal, the Fourth Circuit and Ninth Circuit Court of Appeals have recently affirmed decisions upholding warrantless, suspicionless searches of laptop computers at international airports. See United States v. Arnold, 523 F.3d 941 (9th Cir. 2008), petition for reh'g en banc filed, No. 06-50581 (9th Cir. June 2, 2008); United States v. Ickes, 393 F.3d 501 (4th Cir. 2005). Courts have compared warrantless searches of laptops in customs inspections at a border or international airport to warrantless searches of luggage, suitcases, briefcases, pockets, papers and filmsat such locations.The government's power to conduct border searches is plenary, and does not require a warrant, probable cause or reasonable suspicion. See United States v. Montoya de Hernandez, 478 U.S. 531, 538 (1985). The United States Supreme Court has suggested that only some types of searches of persons, or searches carried out in a particularly "offensive" manner, might be unconstitutional. See Montoya,at 538-40; United States v. Ramsay , 431 U.S. 606, 618 n.13 (1977). No district court has yet ruled on whether the government must possess reasonable suspicion to search electronic data at the border, since all cases thus far in which the issue has arisen have held that reasonable suspicion to search existed (all have so far involved child pornography). See United States v. Irving, 434 F.3d 401 (2d Cir. 2005); United States v. Bunty, No. 07-641, 2008 WL 2371211, at *3 (E.D. Pa. June 10, 2008); United States v. McAuley, No. DR-07-CR-786(1), 2008 WL 2387979, at *4-*6 (W.D. Texas June 6, 2008). Defendants have attempted to distinguish computers from other personal property because of the massive amounts of data they can hold, invoking the First Amendment for expressive material, so far to no avail.

Other countries including the United Kingdom, Canada, Australia and China have conducted similar searches. All these cases have caused companies growing concern about how to protect their confidential information from the prying eyes of government agents. Several are putting policies in place to limit the electronic information officers and employees may take with them when they travel.

Congress may be preparing to take action, however. In June the Senate Judiciary Committee's Subcommittee on the Constitution held a hearing on border laptop searches entitled "Laptop Searches and Other Violations of Privacy Faced by Americans Returning from Overseas Travel." Subcommittee Chairman Senator Russ Feingold of Wisconsin expressed the view that the border-search exception to the warrant requirement should be limited. Witnesses before the Subcommittee recommended legislation requiring reasonable suspicion for laptop searches and probable cause for seizure of data, limits on the duration and location of such searches, and more express policies regarding searches and seizures by  United States Customs and Border Patrol.
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