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Friday, January 3, 2014

Border Searches of Laptops

The BBC reports on how US authorities can search travelers' laptops at the country's border:

A federal judge in New York has ruled authorities can seize travellers' laptops at the border without citing a legal reason, suspecting the traveller of a crime, or explaining themselves in any way. What happens if they take yours? 
. . .

If the US authorities choose, they can seize your computer at the border and search it for evidence of criminal activity, foreign intelligence links, or terrorist ties.

Political activists, academics and journalists say they are worried about having their laptops seized when they cross the border. Many of them have responded to the threat by attending workshops run by privacy experts to learn about protecting their data while travelling.
. . .

If the authorities take your laptop, expect they will copy everything on its hard drive. Afterwards they may send the copy to the US Army's criminal-investigative division in Fort Belvoir, Maryland. 
I do not have much to say on this story that does not echo what one of my classmates has already pointed out.  That classmate is Sid Nadkarni, and he thoroughly analyzes border searches of electronic devices in a comment in the most recent issue of the UCLA Law Review.  The comment's citation is: Sid Nadkarni, “Let’s Have a Look, Shall We?” A Model for Evaluating Suspicionless Border Searches of Portable Electronic Devices, 61 UCLA L. Rev. 148 (2013).  Here is the abstract:

The Fourth Amendment’s border search doctrine has historically given the U.S. government the right to search, without individualized suspicion, the belongings of any individual crossing the U.S. border. Courts have traditionally justified this power by citing the government’s paramount interest in preventing the smuggling of dutiable goods and contraband such as illegal drugs. In the twenty-first century, the government has controversially used this power to search and detain travelers’ portable electronic devices, such as laptop computers, without suspicion to inspect for the transport of prohibited materials like child pornography, terrorist communications, and pirated software. 
In March 2013, the Ninth Circuit in United States v. Cotterman became the first federal circuit court to rule that a particular border search of an electronic device had to be preceded by a finding of reasonable suspicion that the individual had committed a crime. Nonetheless, divergent rulings from the Fourth Circuit and a Massachusetts federal district court leave the future of digital border searches shrouded in legal uncertainty. Furthermore, the Department of Homeland Security’s recent reaffirmation of its view that no suspicion at all is required for such searches puts the government on a legal collision course with the Ninth Circuit and any other jurisdiction that adopts a similar position. 
This Comment argues that digital border searches merit greater scrutiny than conventional border searches because they are more likely to harm individuals’ Fourth Amendment interests. The executive and legislative branches have been unwilling and unable, respectively, to cabin the government’s power to search people’s electronic devices without suspicion. Consequently, this Comment proposes that courts add guidance, consistency, and greater Fourth Amendment protection to the laws governing suspicionless digital searches at the border by adopting a special needs–style balancing test that weighs the government’s interests against the individual’s and provides that the most intrusive searches are impermissible without reasonable suspicion.
It would look like the New York court's decision that the BBC discusses would be a further divergence from the Ninth Circuit's approach.  It is good to see more media attention on this issue, and future decisions will hopefully clarify the rules surrounding digital border searches.


The decision that the BBC discusses is Abidor v. Napolitano and the text of the decision is available here.  While the court dismisses the plaintiff's claim for lack of standing, the court also rules on the Fourth Amendment issues to avoid an "unnecessary remand" in the event of an appeal.  As far as standing is concerned, the opinion includes the notable phrase: "Plaintiffs must be drinking the Kool-Aid if they think that a reasonable suspicion threshold of this kind will enable them to “guarantee” confidentiality to their sources".  Eugene Volokh notes that this appears to be the first use of this phrase in a federal opinion.

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