You've gotten used to being asked to turn on your laptop as you go through airport security so the authorities can confirm it's really a computer and not a bomb. But you may not expect, on returning home from abroad, to have U.S. Customs demand your computer password so they can scrutinize your computer's contents, make a mirror image of your entire hard drive, or "temporarily" seize your laptop.
Start expecting it. Customs has been making such demands and engaging in such invasive searches and seizures. And last week the Ninth Circuit Court of Appeals held that the government has unfettered discretion to do so, with no requirement of reasonable suspicion to think you or your computer are implicated in any criminal activity. United States v. Arnold, No. 06-50581 (9th Cir. April 21, 2008). In Arnold, the officer booted up the defendant's computer and opened up folders called "Kodak Pictures" and "Kodak Memories." On seeing two images of nude women, the officer called in agents of Homeland Security to question Arnold and further search his computer. After finding numerous images of alleged child pornography, the officials seized the laptop, and eventually Arnold was criminally charged. The district court granted Arnold's motion to suppress the evidence on the ground that the search was not justified by any reasonable suspicion. The Ninth Circuit reversed. (Arnold reportedly plans to petition for rehearing en banc.)
The Ninth Circuit's logic and holding. The court reasoned that the Fourth Amendment's protection against unreasonable searches and seizures simply does not apply to searches at the border (or at airports of entry). As the Supreme Court has held, "The authority of the United States to search the baggage of arriving international travelers is based on its inherent sovereign authority to protect its territorial integrity." It follows, the Supreme Court has stated, that as a general matter "searches made at the border … are reasonable simply by virtue of the fact that they occur at the border." Customs therefore has discretion to search luggage and the goods of incoming travelers for any reason or no reason, without any showing of reasonable suspicion. It makes no difference, concluded the Ninth Circuit, that a searched "container" holds vast amounts of personal or confidential business information: "Arnold has failed to distinguish how the search of his laptop and its electronic contents is logically any different from the suspicionless border searches of travelers' luggage that the Supreme Court and we have allowed."
The court dismissed concerns regarding any privacy or First Amendment interests. The holding:
"[R]easonable suspicion [of any crime or wrongdoing] is not needed for customs officials to search a laptop or other personal electronic storage devices at the border."
Implications for law-abiding business people. The power to engage in such searches and seizures without constitutional justification has disturbing implications for business. And while Customs asserts that its officers "are trained to protect confidential information," it is difficult to know what this means in practice. Consider these scenarios.
On the other hand, if you actually are an al Qaeda terrorist, you will not likely find yourself seriously inconvenienced by these practices. Insofar as a terrorist's plans might require written materials, he can simply email them to himself and travel without a computer, purchasing a new one after arrival in the United States.
What's to be done. How much trouble you want to take to avoid these possible scenarios turns on several considerations: how confidential and proprietary you consider the material on your laptop to be; how sensitive you are to intrusions into your intellectual property, communications and business affairs (not to mention any personal matter that may also be on your computer); and how willing you are to trust that government officials and employees will not misuse what they seize or negligently disclose confidential information.
At the U.S. border, your laptop can and may be thoroughly searched even if you have done nothing to give rise to any reasonable suspicion of wrongdoing. Its contents can be viewed, seized and possibly forwarded to other government agencies. Rather than risk exposure of sensitive business and personal information when entering the country, plan ahead to avoid disclosing material that you are obligated to protect from unanticipated inspection and whose secrecy you may wish to preserve. Consider a combination of the above steps to avoid breaching fiduciary duties, clients' and customers' trust, and confidentiality and privacy obligations.
For further information on privacy issues and technology, please contact Mitchell Zimmerman, Co-Chair of the Firm's Privacy and Information Security Group, at 650.335.7228 (firstname.lastname@example.org), Michael Blum, Co-Chair of the Firm's Privacy and Information Security Group, at 415.875.2468 (email@example.com), or Matt Kesner, Chief Technology Officer for the Firm, at 650.428.4488 (firstname.lastname@example.org).
This update is intended by Fenwick & West LLP to summarize recent developments in the law. It is not intended, and should not be regarded, as legal advice. Readers who have particular questions about these issues should seek advice of counsel.
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