US judge dismisses challenge to suspicionless laptop searches at the border

by Ned Levi on January 6, 2014

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. US citizenship offers no immunity 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 warrants, probable cause or even reasonable suspicion. CBP agents have 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.”

Like other business persons, photographers, journalists and even many leisure travelers, I use many electronic devices (laptop, iPad, iPhone, iPod, cameras, and external hard drives) while away internationally. While I haven’t yet had my electronic devices inspected or confiscated upon entering the US, far too many international travelers have, including devices needed for work which were owned by their employers, as I’ve noted 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, photographers and journalists often store important and critical data, including their travel work product, much of it confidential, on these devices 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 as stored on their electronic devices by rummaging forensically in them is tantamount to a home invasion, in my opinion.

In a surprise ruling in March, 2013, the US Court of Appeals, Ninth Circuit, in the case of the United States v. Howard Wesley Cotterman, reversed many of its earlier decisions by ruling the Fourth Amendment applies at the border, and that CBP agents need to recognize there is an expectation of privacy and can’t search electronic devices 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.”

Unfortunately, Judge Edward Korman of the US District Court for the Eastern District of New York in Brooklyn, ruling on the suit Abidor v. Napolitano by dismissing it on December 31, 2013, didn’t agree with the Ninth Circuit. In addition to Mr. Abidor, the ACLU filed the suit on behalf of David House, the National Press Photographers Association¹, and the National Association of Criminal Defense Lawyers.

Judge Korman made two major observations in dismissing the suit in which I believe he erred and the result of these, I believe, clearly differed with the opinion of the Court of Appeals, Ninth Circuit.

Border searches of electronic devices are rare — While this is true — for example, only about 6,600 people had devices confiscated from October, 2008 to June, 2010 — I believe Judge Korman missed the point. Although the government usually applies the rules of the First and Fourth Amendments, it doesn’t justify ever ignoring them.

Many of the border searches of electronic devices were prompted by reasonable suspicion — No one has denied this, but in my opinion, having suspicion for some searches doesn’t justify an inspection and confiscation program which doesn’t require that suspicion for all searches.

I have no doubt this recent ruling will be appealed. With judges in different federal judicial districts disagreeing, eventually the US Supreme Court will have to rule for the nation on the extent to which the “border search doctrine” can be applied to the search and seizure of electronic devices at the US border.

For now, CBP will continue its random electronic gear search and seizure program at the border. So, as before, I offer this advice to travelers arriving 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 connect your tablet, smartphone or laptop to your home and/or office computer to view and answer your email, rather than directly on those devices. That will keep your personal and business email messages and attachments out of the CBP reach.

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

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¹ The column’s author, Ned Levi, is a member of the National Press Photographers Association.

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