Court has ruled some Customs Border Protection searches and confiscations illegal

by Ned Levi on September 16, 2013

Since 2008, I’ve been writing about the random inspection and confiscation program of any traveler’s electronic devices by US Customs and Border Protection (CBP) upon entering the US while still at the border. Being a US citizen doesn’t make you immune from the CBP program.

Since 9/11, CBP agents have been searching and seizing laptops, digital cameras, cellphones and other electronic devices at the border without search warrants or probable cause. CBP agents have even been subjecting these devices to extensive forensic analysis.

In 2006, the US Court of Appeals, Ninth Circuit, in the case United States of America v. Stuart Romm, affirmed the power of CBP to search, seize and do extensive analysis of travelers’ electronic devices, “without probable cause or a warrant under the border search doctrine.”

The border search doctrine is an exception to the Fourth Amendment’s requirement for a warrant or probable cause, at the international border of the US, in order to balance the interests of the country against the rights of the entrants to the US. As noted by the Ninth Circuit in their 2006 decision, “…searches made at the border are reasonable simply by virtue of the fact that they occur at the border.”

I travel with many electronic devices when I’m away internationally, like many journalists, photographers, business persons, and vacationers, including a laptop, iPad, iPhone, iPod, cameras and external hard drives.

I haven’t yet had my electronic devices inspected or confiscated upon entering the US. But, far too many international travelers have, including devices needed for work and which were owned by their employers. I’ve noted several of these instances in past articles.

In the 21st century, many keep a record of the most intimate details of their lives on their laptops, tablets and smartphones. Business people and photo journalists often store some of their most important data and their travel work product on external hard drives until they return to their office.

For business travelers and vacationers alike, laptops, tablets and smartphones have become de facto electronic diaries. You can’t get more private and personal than that. The intrusion of the government into a person’s private life by rummaging forensically in their personal information and that of loved ones and friends is tantamount to a home invasion, in my opinion.

In 2008, in United States v. Arnold the US Court of Appeals, Ninth Circuit reaffirmed their prior rulings stating, “Reasonable suspicion is not needed for customs officials to search a laptop or other personal electronic storage devices at the border.” Essentially the court ruled that a search of a laptop is no different than a search of a suitcase or duffel bag.

Earlier this year, we learned from the ACLU that the US Government has been using “travel alerts” to nonconsensually seized and searched traveler electronic devices since 2010. Moreover, these searches, it’s been revealed, are more invasive than ever thought in the past. This information came from the ACLU work in the case of David House.

Mr. House was stopped at Chicago’s O’Hare airport coming back from vacation. DHS agents detained and interrogated him, then seized his laptop, mobile phone, camera, etc. While the agents returned his phone after a quick inspection, they kept the remainder of his equipment. Seven weeks later they returned the devices, but they actively investigated copies of everything from his seized devices for about a half year.

Now, in a surprise ruling this year, again from the US Court of Appeals, Ninth Circuit, in the case of the United States v. Howard Wesley Cotterman, heard before the entire court, the court essentially reversed many of its earlier rulings. The court ruled that the Fourth Amendment does apply at the border, that CBP agents need to recognize there is an expectation of privacy and can’t do a search without a reason. They also noted that the act of merely encrypting a file with a password does not in and of itself create suspicion.

The court made a ground breaking statement in their ruling.

Even at the border, we have rejected an ‘anything goes’ approach.”

With this ruling don’t expect anything to change any time soon at the border. CBP continues its random electronic gear search and seizure program at the border, almost without abatement. This will not be settled until the US Supreme Court rules about the extent the “border search doctrine” can be applied to the search and seizure of electronic devices.

So, as before, my advice to travelers landing in the US from an international trip:

1. Store as little personal, professional and business data as possible directly on electronic devices you use while traveling abroad.

2. Store as much necessary data as possible on the “cloud” to access while traveling. That way, the government won’t be privy to the information, as it won’t be stored on your devices.

3. Use remote access software to remotely connect to your home and/or office computer. Retrieve and answer your email directly on your computer back in the US by remotely running that computer from your tablet or laptop while abroad. That leaves all your personal and business electronic email messages out of the reach of CBP.

4. Delete all history, cookies, temporary files and sensitive data from your electronic devices securely like you would when recycling an old computer, before returning to the US. Never store passwords on electronic devices with which you travel.

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