High Tech Squares Off with the Fourth Amendment, Round 4: Should the Government be Able to Search and Hold Your Laptop at the Border without a Warrant?

There used to be a day when (for the otherwise law-abiding) a messed with suitcase was the worst thing you were likely to encounter on a pass through Customs into United States. Sadly, this is no longer the case.

The federal United States Customs and Border Protection agency is part of the Department of Homeland Security. We live in a perilous world and there are pressing security concerns at our nation’s borders.

But how should security priorities, albeit valid ones, interact with the array of electronic devices that seemingly all travelers now carry as a matter of routine? A quick and unscientific survey at LAX over the recent Thanksgiving weekend yielded an almost uncountable number of laptops, tablets, telephones, and other depositories of electronic information, of varying makes, sizes and capabilities.

It is a fair assumption that much of the information imprinted in or accessible by these devices is uniquely personal to the holder or is business related and that much of it could not be seized or examined by the government, other than through the traditional tools of warrant, subpoena or summons.

That is, of course, assuming that the possessor of this information is standing inside the United States. But if one is outside, seeking leave to get in, then it is a very different story. Traditionally, the government’s right to search and examine at the border has been far broader and more expansive than “intra-country” searches. Customs officials freely inspect bags, packages and persons. All of this conduct occurs without a warrant and it has always been thus.

The question is: how far can this latitude extend to personal electronic technology and the wealth of data it holds? These limitations are being litigated in various trial courts, as reflected in a story in The New York Times, dated December 4, 2012.

It is the government’s position that in a border search of an electronic device, that Customs officers can keep the device in question for “a reasonable amount of time” and have the right to access all information contained therein, either voluntarily through a password provided by the owner or involuntarily, by other means. No warrant is needed.

It is also estimated that approximately 5,000 such electronic searches occur every year. The “who”, “what”, “when” and “why” of these searches are wholly Customs-discretionary.

But this may change as the cases, now pending, make their way through the courts. A decision is expected soon in the case of Pascal Abidor, an Islamic scholar who was detained as he tried to enter the country from Canada via Amtrak. His laptop searched and held for 11 hours.

In another case, venued in federal court in Minnesota, the government confiscated a laptop, camera and USB drive from a member of a group supportive of the Wikileaks organization and held them for seven weeks. The owner is suing and the judge has denied the government’s motion to dismiss, holding (at least initially), that the traditional latitude afforded the government in border searches does not completely trump the Constitution.

If in fact, it is found in one or both of these cases, that the government is using its border search power to target certain kinds of political speech (as is alleged), then some kind of limitation might be on the horizon. Given the enormous amount of data people now casually travel with in their pockets or briefcases, some limit may well be overdue.

© 2009- Duane Morris LLP. Duane Morris is a registered service mark of Duane Morris LLP.

The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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