Searching Laptops at the Border and In Airports: A Disturbing Practice That Imperils Fourth and First Amendment Rights

This month, the Asian Law Caucus (ALC) and the Electronic Frontier Foundation (EFF), two civil liberties groups based in Northern California, filed a lawsuit under the Freedom of Information Act (FOIA) to force the government to disclose its policies on border searches, including its rules governing the seizure and copying of the contents of electronic devices. The two groups also want to find out the criteria the government uses to determine when border agents will ask travelers about their political beliefs, religious practices, and other First-Amendment-related activities.

Though the groups' initial FOIA request for relevant documents was made on October 31, 2007, they have yet to receive any documents - even though FOIA stipulates that a request for public information should receive a response within 20 days. Accordingly, they have filed suit to compel a response.

The Association of Corporate Travel Executives (ACTE) also filed a similar FOIA request last July, and received a highly redacted document from DHS in response. ACTE is concerned about government laptop searches because executives often travel with sensitive corporate information stored on their laptops.

In this column, I will examine the basis for the lawsuit, and explain the current state of the law with respect to government searches of laptops and other electronic devices at the border and in airports.

The Basis for the Lawsuit: Searches of Laptops, Cell Phones, Blackberries, and MP3 Players, Especially Those of Muslim, Middle Eastern or South Asian Travelers

Recently, many travelers entering the U.S. - both citizens and immigrants, and especially those from certain immigrant or ethnic groups -- have found their laptops, cell phones, and Blackberries searched at a U.S. Customs checkpoint, and even confiscated there. Devices that are confiscated may never be returned, or returned at a later date.

For example, ALC received more than 20 complaints from Northern California residents last year of excessive or repeated screenings by U.S. Customs and Border Protection agents, and 15 of these cases reportedly involved searches of cellphones, laptops, MP3 players, and other electronic devices. The travelers involved were mainly of Muslim, Middle Eastern or South Asian backgrounds.

Thus, ALC and EFF asked DHS to disclose its policies on questioning travelers on First Amendment-protected activities, copying travelers' personal papers, and searching their laptop computers and other electronic devices. The ALC and EFF's position is that members of the public have a right to know when the government will search their laptops or other electronic devices and, when a search does occur, what types of data the government might, read, copy, or store.

Individuals and corporations alike are concerned about what types of files might be accessed: Tax records? Bank statements? Personal letters? Patents? Moreover, they want to know how such information (if retained by the government) will be used to assess a person in the future. Will it be added to a traveler's profile - meaning more searches at U.S. borders and international airports?

Three Stories of Travelers Affected by Cellphone or Laptop Border Searches

Three travelers' stories suggest how the undisclosed policies are being put into effect.

Nabila Mango is a U.S. citizen who has lived in the country since 1965 and works as a therapist. According to news reports, in December 2007, when she arrived in the U.S. from Jordan, she was detained at Customs and her cell phone was taken for further scrutiny. Her daughter, waiting outside the San Francisco airport terminal, tried to get through repeatedly as Mango was questioned for an hour and a half. After Mango's phone was returned, however, Mango noticed that any record of her daughter's attempted calls had been deleted from her call log.

Maria Udy, a British citizen, is a marketing executive with a global travel management firm in Bethesda, Maryland. In December 2006, during her trip from Washington, DC to London, she has reported, her company laptop was seized by a federal agent. "I was basically given the option of handing over my laptop or not getting on that flight," she said. "I was assured that my laptop would be given back to me in 10 or 15 days." She said the agent copied her log-on name and password, and asked her to show him a recent document and how she gains access to Microsoft Word. She was asked to access her e-mail but could not do so, because of lack of Internet access. Her laptop was confiscated and now, more than a year later, Udy has received neither her laptop nor an explanation.

Finally, a third person, Amir Khan, a consultant of Pakistani background who lives in Fremont, California, says that agents with U.S. Customs and Border Protection have required him to give them access to password-protected, confidential information from his company and to his banking records.

Cases on Whether Border Searches of Laptops and of Expressive Materials Violate the Fourth and First Amendments

As a general matter, does the government have the right to search any traveler's laptops at the border or international airports? The answer is unclear. At present, however, U.S. customs and border patrol agents do not, by law, need a search warrant for "routine" border/airport searches.

The border search exception to the search warrant requirement was set forth in 1985 in the Supreme Court's decision United States v. Montoya de Hernandez. There, the Court allowed routine searches of persons entering the United States without probable cause, reasonable suspicion, or a warrant, and deemed international airports to count as border terminals, even when not physically located on a U.S. border.

Suitcase searches surely fall within this rule. There is some authority, however, for the proposition that the government needs something more - reasonable suspicion - to engage in more intrusive searches, such as a strip search or a body cavity search, even at the border or in international airports.

A decision by the U.S. Court of Appeals for the Ninth Circuit in United States v. Romm addressed laptop searches in particular. In 2004, Stuart Romm boarded a plane in Las Vegas heading for British Columbia. When he disembarked in Canada, Canadian border agents stopped him for questioning. These agents searched his laptop, after learning he had a criminal record, and discovered child pornography websites listed on Romm's Internet search history. Canada sent Romm back to the U.S., where Customs agents questioned him further and searched his laptop. Eventually, Romm was convicted of possessing child pornography. On appeal, the Ninth Circuit held that computer forensic analysis falls under the "border search exception to the warrant requirement." However, it did not directly address whether border agents needed reasonable suspicion to search laptops, as the Canadian search had already provided reasonable suspicion by unearthing the child porn sites in the search history. Nor did it address whether such a search is "routine," as Romm did not raise the issue.

In another relevant case, United States v. Ickes, the U.S. Court of Appeals for the Fourth Circuit held that there is no First Amendment exception to the border search rule when a search's target is expressive materials. The Court reasoned as follows: "The border search doctrine is justified by the longstanding right of the sovereign to protect itself. Particularly in today's world, national security interests may require uncovering terrorist communications, which are inherently 'expressive.'" As in the Romm case, however, the level of suspicion required was not addressed, because reasonable suspicion clearly existed on the facts of the case.

My research indicates that no appellate court has yet addressed the question of whether "reasonable suspicion" is necessary for a laptop search. However, in United States v. Arnold, a California federal district court held that it is. The court reasoned that a search of travelers' files on a laptop is akin to a search of his or her memory, as laptops are "capable of storing thoughts." It wrote "[W]hile 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."

The government appealed, and the appeal was argued before the Ninth Circuit in October 2007. The Court has yet to issue a decision. Let's hope that when it does, the Ninth Circuit will affirm the district court's well-reasoned opinion, and require reasonable suspicion for laptop searches.

A Search of a Laptop Is More Intrusive than a Search of a Suitcase, and thus Should Only Take Place Upon Reasonable Suspicion

U.S. Customs and Border Protection has publicly defended its laptop searches as routine. The U.S. Government parallels laptops and other electronic devices to sealed suitcases, and asserts a right to open them, log in, and search through all the electronic information stored within. But the logic of the District Court in United States v. Arnold is much more persuasive: A search of a laptop is much more similar to the search of one's mind, than of one's suitcase. Commentators have pointed out that laptops and PDAS are much like diaries. They record intimate details of our lives, track months and years of our personal histories, list our friends, business associates, and clients, and reflect our opinions on topics ranging from the election to the stock market to the war in Iraq. Finally, their capacity is far great than that of a suitcase which, limited by its physical dimensions, contains a small inventory of items.

In some professions, moreover, a search of a laptop or PDA can pose special dangers. A lawyer's may contain attorney-client privileged information or attorney work product that is for lawyers' eyes only. A journalist's may contain contact information for confidential sources. A social worker's may have sensitive client files focused on personal case histories. A businessperson's may contain trade secrets or information about a future share offering that has not been announced.

Not only might this information be accessed, but it might never be returned. No wonder, then, that some companies are considering telling travelers who are returning to the United States with critical information on their laptops to encrypt documents and e-mail files to themselves.

In sum, while the government may have a right to search a laptop at the border without a warrant, it should have a reasonable suspicion before it does so. Moreover, it should explain the criteria it uses to make such searches, so that these criteria can be examined, commented upon, and shown to be free of racial, ethnic or religious profiling. Let's hope that the ALC/EFF lawsuit sheds some sorely-needed light on this subject in the near future.